George  Washington  Floweis 
Memorial  Collection 

DUKE  UNIVERSITY  LIBRARY 


ESTABLISHED  BY  THE 
FAMILY  OF 

COLONEL  FLOWERS 


## 


REPORTS 


OF 


CASES  IN  LAW, 


ARGUED  AND  DETERMINED  IN 


THE  SUPREME  COURT 


OF 


Jlodl  Carolina, 

JUNE  TERM,  186:2. 
VOL.  VIII. 


BY  HAMILTON  C.  JONES, 

REPORTER. 


SALISBURY,  N.  C. : 

PRINTED  BY  J.  J.  BRUNER. 

1862. 


JUDGES 


OF   THE 


SUPREME    COURT 


DURING   THE   PERIOD   COMPRISED    IN    THIS   VOLUME 


Hon.  KICHMOND  PEARSON,  Chief  Justice. 
"       WILLIAM  H.  BATTLE, 
«       MATTHIAS  E.  MANLY. 


JUDGES  OF  THE  SUPERIOR  COURTS 

Hon.  JOHN  M.  DICK, 

"  JOHN  L.  BAILEY, 

"  E.  M.  SAUNDERS, 

"  ROBERT  R.  HEATH, 

"  R.  S.  FRENCH, 

"  J.  G.  SHEPHERD, 

«  GEORGE  HOWARD,  Jr. 

"  JAMES  W.  OSBORNE, 


ATTORNEY    GENERAL 
W.  A.  JENKINS. 


INDEX 

TO  THE  NAMES   OF  CASES  IN 
VOL.  VIII. 


Adams  v.  Clark, 
Adams  v.  Smallwood, 
Airey,  Stokes  v. 
Albea,  Chipley  v. 
Albright  v,  Tapscott, 
Andrews,  Thompson  v. 
Andrews,  Thompson  v. 
Anthony,  Hunter  v. 
Arledge,  Ledbe^ter  v. 
Arnold,  Bnis  v. 
Arnold,  Lash  v. 
Ashe  V.  Streator, 
Ashe  V.  DeRossett, 
Askew,  Hays  v. 

Baines,  Drake  v. 

Ballard  v.  Mitchell, 

Bannermau,  Pridgen  v. 

Barnes  v.  Barnes, 

Barnes  v.  Haybarger, 

Beaty  v.  Gingles, 

Bell,  Borden  v. 

Bell,  Styron  v. 

Bennett  v.  Taylor, 

Billups,  Bond  v. 

Billups  V.  Riddick, 

Bland  v.  Scott, 

Bond  V.  Billups, 

Bond  V.  Hall, 

Bond  V.  Warren, 

Borden  v.  Bell, 

Bowles,  McDowell  v. 

Brooks  V.  Walters, 

Brown,  Roughton  v. 

Brown  v.  Smith, 

Bryan  v.  Enterprise, 

Bryan,  Odom  v. 

Buchanan  v.  McKcnzie, 
"  V.  " 

"  -        V.  " 


56 

258 
66 
204 
473 
125 
453 
385 
475 
233 
206 
256 
240 
226 

122 

153 

53 

366 

76 

302 

294 

222 

281 

423 

163 

100 

423 

14 

191 

294 

184 

428 

393 

331 

260 

211 

91 

93 

95 


Buchanan,  McLean  v.  444 

Buffkin,  Scaff  v.  161 

Buie,  Covington  v,  31 

Buis  V.  Arnold,  233 

Bumgarner,  Childers  v.  297 

Burfoot,  Shaw  v.  344 

Burgess,  Moffitt  v.  342 

Carter,  Cowles  v,  381 

Castrix,  Pearce  v.  71 

Cates  V.  Whitfield,  266 

Cherry,  Cooper  v.  323 

Cherry,  Myers  v.  144 

Childers  v.  Bumgarner,  297 

Chipley  v.  Albea,  204 
Chisholm,  Herrington  v.         4 

Clark,  Adams  v.  56 

Clark  V,  Latham,  1 

.Clay,  Morris  v.  216 

Collins  V.  Creecy,  323 
Commissioners  v.  Patterson  182 

Cooper  V.  Cherry,  323 

Cooper,  White  v.  48 

Cornish,  Wiseman  v.  218 

Council,  Williams  v.  229 

Covington  v.  Buie,  31 

Cowles  v.  Carter,  381 

Cox  V.  Cox,  487 

Cox,  Thompson  v.  311 

Creecy,  Collins  v  333 

Critcher,  Hudson  v.  485 

Crump  V.  McKay,  32 

Currie,  Short  v.  42 

Davis  V.  Golston,  28 

Davis,  Harrell  v.  359 

Davis,  Parker  v.  460 

Davis,  Rodman  v.  134 

Debrule  v.  Scott,  73 

Debnam,  Hughes  v.  127 


VI 


INDEX. 


DeRossett,  Ashe  v.  240 

Dickson  v.  Warters,  449 

Drake  v.  Baines,  122 

Dobson  V.  Finley,  495 

Dowell  V.  Jacks,  387 

Dunbar,  ISTorman  v.  317 

Edney,  Reynolds  v,  406 

Edwards,  Jones  v.  336 

Edwards  v.  Kelly,  69 

Enterprise,  Bryan  v.  260 

Eure,  Willey  v.  320 

Fagan  v,  Williamson,  433 

Finley,  Dobson  v.  495 

Foard,  Griffin  v.  337 

"     V.  Railroad  Co.,  235 

Foster,  Griffin  v.  337 

Fonst  V.  Trice,  290 

Foust  V.  Trice,  490 

Gardner  v.  Klntts,  375 

Gibbs  V.  Williams,  391 
Gingles,  Beaty  v.               .  302 

Golston,  Davis  v.  28 

Graham  In  I'e,  416 

Gregory  v.  Richards,  410 

Griffin  v.  Foster,  337 

Griffin  V.  Hadley,  82 

Griffith.  March  v.  264 

Griffin  V.  Tripp,  64 

Haden  v.  Rail  Road  Co.  362 

Hadley,  Griffin  v.    *  82 

Hall,  JBond  v.  14 

Hanna  v.  Ingram,  55 

Hanna,  Jackson  v.  188 

HarrcU  v.  Davis,  359 

Harrington  v.  Wilcox,  349 

Haybarger,  Barnes  v.  76 

Hays  v.^Askew,  226 

Hedrick  v.  Wagoner,  360 

Herring  v.  Utley,  270 

Herrington  v.  Chisholm,  4 

Hinson,  Kron  v.  347 

Hobbs,  Little  v.  179 

Hockaday  v.  Parker,  16 
Houston  V.  Nense  River 

Nav.  Co,  476 


Howell  V.  Troutman,  304 

Hudson  V.  Critcher,  485 

Hughes  V.  Debnam,  127 

Hunter  v.  Anthony,  385 

Ingram,  Hanna  v.  55 
Inman,  Powell  v.  436 
Ireland,  Wilder  v.  85 
Jackson  v.  Hanna,  188 
Jacks,  Dowell  v.  387 
Johns,  McDaniel  v.  414 
Jones  v.  Edwards,  336 
Jones  V.  Willis,  430 
Justices  of  Harnett,  Mc- 
Coy v.  272 

Kelly,  Edwards  v.  69 
Kinsey  v.  Magistrates  of 

Jones,                    *.  186 

Klntts,  Gardner  v.  375 

Koonce  v.  Perry,  58 

Kron  v.  Hinson,  347 

Lander  v.  McMillan,  174 

Lane  v.  Washington,  248 

Lash  v.  Arnold,  206 

Latham,  Clark  v.  1 

Latta  V.  Russ,  111 

Ledbetter  v.  Arledge,  475 

Leggett,  McCormick  v.  425 

Little  V.  Hobbs,  179 

Long,  Tomlinson  v.  469 

Luther  v.  Skeen,  356 


McCaskill,  McDonald  v.  158 

McCorraic  v.  Leggett,  425 

McCoy  V.  Jus.  of  Harnett,  272 

McDaniel  v.  Johns,  414 

McDaniel  v.  JSTethercut,  97 

McDonald  v.  McCaskill,  158 

McDowell  V.  Bowles,  184 

McDugald,  McLean  v.  383 

McElwee,  Sharpe  v.  115 

McKey  v.  Neill,  214 

McLean  v.  McDugald,  383 

McLean  v.  Murchison,  38 

McLean  v.  Buchanan,  444 

McKay,  Crump  v.  32 


INDEX. 


McKenzie,  Buchanan  v.  '    91 

McKenzie,  Biiclianan  v.  95 

McKenzie,  Bnclianan  v.  93 

McMillan,  Lander  v.  174 

McNeill,  Morrison  v.  45 

Madden  v.  Porterfidd,  160 

March  V.  Griffith,  264 

Marcus,  Taylor  v.  402 
Magistrates  of  Jones,  Kin- 

sey  V.  186^ 

Mason  v.  White,  42 ij 

Mason  v.  Williams,  478 

Maynard,  Sparrow  v.  195, 

Meivin,  Willis  v.  62 
Mendenhall  v.  Mendenhall,287 

Mendenhall  v.  Parish,  105 

Mitchell,  Ballard  v.  153^ 

Moffitt  V.  Burgess,  342; 

Moore,  Townsend  v.  147 

Morrison  v,  McNeill,  45 

Morris  v.  Clay,  216 

Morse  V.  Nixon,  35; 

Murchison,  McLean  v.  38 

Myers  v.  Cherry,  144 

Murray,  Patterson  v.  278 


Neal  V.  Rail  Road  Co.  482 

Neill,  McKey  v.  214 
Nense  River  Nav.  Co., 

Houston  V.  476 
Nethercut,  McDaniel  v.  97 
Nixon,  Morse  v.  35 
N.  C.  RailroadCo.  v.  Vin- 
son, 119 
Norman  v.  Dunbar,  317 

Odom  V,  Bryan,  211 

Oldham,  Prichard  v.  439 

Pan  n  ell  v.  Scoggin,  408 
Parish,  Mendenhall  v.  105 
Parker  v.  Davis,  460 
Parker,  Hockaday  v.  16 
Parker  v.  Richardson,  452 
Parker  v.  Ricks,  447 
Patterson,  Commission- 
ers V.  182 


Patterson  v.  Murray, 
Payne,  Tomlinson  v. 
Pearce  v.  Castrix, 
Perry,  Koonce  v. 
Poindexter,  Reeves  v. 
Poole  V.  Railroad  Co. 
Porterfield,  Madden  v. 
Powell  V.  In  man, 
Prichard  v.  Oldham, 
Pridgen  v.  Bannerinan, 

Railroad  Co.,  Foard  v. 
Railroad  Co.,  Iladen  v. 
Railioad  Co.,  Neal  v. 
Railroad  Co.,  Poole  v. 
Reeves  v.   Poindexter, 
Reid,  Winchester  v. 
Reynolds  v.  Edney, 
Richardson,  Parker  v. 
Richards,  Gregory  v. 
Ricks,  Parker  v. 
Riddick,  Billups  v. 
Rodman  v.  Davis, 
Rough  ton  V.  Brown, 
Russ,  Latta  v. 

Scaff  V.  Buffkin, 
iSchimmerhorn,  Williams 
[Scoggin,  Pannell  v. 
Scott,  Bland  v. 
Scott,  Debrule  v, 
Sharpe  v.  McElwee, 
Shaw  v.  Burfoot, 
Short  V.  Currie, 
Skeen,  Luther  v. 
Sleight  V.  Watson, 
Small  wood,  Adams  v. 
Smith,  Whitehead  v. 
Smith,  Brown  v. 
Sparrow  v.  Maynard, 
State  V.  Brandon, 

"      V.  Brannen, 

"      V.  Brown, 

"      V.  Clara, 

"     V.  England, 

"     V.  Graham, 

"     V.  Gray, 


278 

108 

71 

58 

308 

340 

166 

436 

439 

53 

235 
362 
482 
340 
308 
377 
406 
452 
410 
447 
163 
134 
393 
111 

161 

.104 

408 

100 

73 
115 
344 

42 
356 

10 
258 
351 
331 
195 
463 
20.S 
443 

25 
399 
397 
170 


vin 


INDEX. 


State  V. 

"       V. 

"       V. 

"        V. 

"       V. 

"        V. 

"        V. 

"       V. 

"       V. 

'•'      V. 
Stokes  V, 
Streator, 
Styron  v 
Suttle  V. 


Harriss, 
Jim, 

Laughlin, 
Laugblih, 
McDaniel, 
Norman, 
Peter  and  Jess, 
Peter, 
Sam, 
Smith, 
Airey, 
Ashe  V. 
,  Bell, 
Turner, 


Tapscott,  Albright  v. 
Tatum,  Wilson  v. 
Taylor,  Bennett  v. 
Taylor  v.  Marcus, 
Thompson  v.  Andrews, 
Thompson  v.  Andrews, 
Thompson  v.  Cox, 
Tomlinson  v.  Long, 
Tomlinson  v,  Payne, 
Townsend  v.  Moore, 
Trice,  Foust  v. 
Trice,  Foust  v. 
Tripp,  Griffin  v. 
Trotter,  Welch  v. 
Troutman,  Howell  v. 


136 
459 
354 
455 

284 
220 
346 

19 
150 
132 

66 
256 
222 
403 

473 
300 
281 
402 
125 
453 
311 
469 
108 
147 
490 
290 
64 
197 
304 


Tiii-ner,  Suttle  v. 


403 


Utley,  Herring  v.  270 

Vinson,  N.  C.  Kailroad  v.  119 

Walters,  Brooks  v.  428 

Warren,  Bond  v.  191 

Washington,  Lane  v.  248 

Waters,  Dixon  v,  449 

Wagoner,  Lledrick  v,  360 

Watson,  Sleight  v.  10 

Welch  V.  Trotter,  197 

White  V.  Cooper,  48 

White,  Mason  v.  421 

Whitehead  v.  Smith,  351 

Whitfield,  Cates  v.  _  266 

Wilcox,  Harrington  V.  349 

Wilder  v.  L-eland,  85 

Willey  V.  Eure,       ■  320 

Williams  v.  Council,  229 

Williamson,  Fagan  v,  433 

Williams,  Gibbs  v.  391 

Williams,  Mason  v.  478 
Williams  v.  Schimmerhorn  104 

Willis,  Jones  v.  430 

Willis  V.  Mel  vin,  62 

Wilson  V.  Tatum,  300 

Winchester  v.  Keid,  377 

Wiseman  v.  Cornish,  218 


CASES  AT  LAAV, 

ARGUED  AND  DETERMINED 


SUPREME  COURT  OF  NORTH  CAROLINA, 
AT  RALEIGH. 


DECEMBER  TERM,  1860. 


JOHN  N.  CLARK  v.  CHARLES  LATHAM. 

No  appeal  will  lie  from  the  County  to  the  Superior  Court,  which  must  neces- 
sarily be  ineffectual  for  the  purpose  for  which  it  was  prayed. 

The  costs  allowed  against  bail,  notwithstanding  a  surrender,  &c,,  (Rev.  Code, 
ch.  11,  sec.  10,)  do  not  include  such  as  are  incurred  on  account  of  an  im- 
proper and  ineffectual  appeal. 

Whether  the  provision  in  chapter  10,  sec.  6,  of  the  Revised  Statutes,  requir- 
ing a  trial  of  the  picas,  entered  by  bail,  to  be  had  at  the  first  term,  is  not 
altered  by  the  Revised  Code,  ch.  11,  sec.  4.     Queref 

Scire  Facias  against  bail ;  tried  at  the  last  Term  of  Hert- 
ford Superior  Court,  before  Howaed,  J. 

The  following  case  agreed  was  submitted  for  the  judgment 
of  the  Court.  At  May  Term,  1856,  of  the  County  Court  of 
Hertford,  the   plaintiff  recovered  a  judgment  in  assumpsit 


IN  THE  SUPREME  COURT. 


Clark  V.  Latham. 


against  one  S.  S.  Simmons,  for  $375  and  costs.  The  original 
writ,  in  the  case,  was  i:«sned  to  Charles  Latham,  sheriff  of 
Washington  county,  who  returned  it  '•  executed,"  but  with- 
out taking  any  bail-bond  for  the  ai)j)earance  of  the  said  Sim- 
mons, whereby  he  became  special  bail  for  him.  A  iicire  fa- 
cias against  the  defendant  (the  saicl  Latham)  was  issued,  seek- 
ing to  subject  him  as  such  bail,  and  was  returned  to  May  Term, 
1860.  of  Hertford  County  Court,  "executed."  At  tiiat  term, 
the  defendant,  by  his  Attorney,  tendered  the  pleas  :  "  Nul 
tiel  record^'-  "  sickness  of  priMcii)al,"  "  surrender  of  principal." 
The  plaintiff,  through  his  counsel,  moved  for  a  trial  of  the 
pleas  at  that  term,  insisting  that  the  law  required  a  trial  at 
tiie  first  term,  and  that  unless  the  pleas  were  then  verified,  be 
was  entitled  to  judgment.  That  motion  was  refused  by  the 
Court,  and  the  cause  was  continued.  From  which  ruling  the 
plaintiff  appealed  to  the  Superior  Court.  Upon  considera- 
tion of  the  case  agreed  in  the  Superior  Court,  his  Honor  or- 
dered the  appeal  to  be  dismissed  at  the  costs  of  the  plaintiff. 
From  which  judgment  plaintiff  appealed  to  this  Court. 

Garrett^  for  the  plaintiff. 

Whiston^  Jr.,  and  11.  A.  GilUavi,  for  the  defendant. 

BArrLK,  J.  An  order  for  the  continuance  of  a  cause  is  re- 
garded as  a  discretionary  one,  from  which  no  api)eal  can  be 
taken.  Such  is,  undoubtedly,  the  general  rule,  and  we  can- 
not discover  any  thing  in  the  j^resent  case  which  makes  it  an 
exception.  TIiq  i)laintilf,  indeed,  contended  in  the  County 
Court,  that  he  had  a  right  to  have  his  cause  tried  at  the  first, 
or  appearance  term,  and  insisted  that  he  was  eiiiitled  to  a 
judg;ncnt,  unless  the  pleas  of  the  defendant  were  then  veri- 
fied and  found  to  be  true  by  a  jury.  The  Court  refused  hie 
motion  for  a  judgment,  and  made  an  order  for  the  continu- 
ance of  the  cause,  but  whether  that  was  done  for  the  reason 
that  in  the  opinion  of  the  Court  the  plaintiff  was  not  entitled 
to  a  trial  at  that  term,  or  because  the  defendant  was  not  then 
prepared  with  his  proof,  does  not  appear.  It  is  merely  stated 
that  the  plaintiff's  motion  for  a  judgment  was  refused  and  the 


DECEMBER  TERM,  1860. 


Clark  V.  Latham. 


cause  was  continued.  Supposing  that  the  order  for  a  contin- 
uance ought  not  to  liavc  been  made,  how  could  it  be  corrected 
in  the  Superior  Court  upon  an  appeal  ?  Tiie  term  of  th€ 
County  Court,  at  wliich  the  plaintiff' insisted  upon  liis  right  to 
have  a  trial,  must  necessarily  have  been  passed  before  the 
cause  cn;ild  be  disposed  of  in  the  Superior  Court,  and  it  was, 
therefore,  out  ol'  the  power  of  the  Court  to  correct  the  error, 
supposing  one  to  have  been  coram'itted  ;  hence,  we  conclude 
that  no  appeal  will  lie  from  an  order  of  the  County  Court, 
where  the  appeal  must  necessarily  be  ineffectual  foi-  the  pur- 
poses for  which  it  is  pra^'ed.  We,  theretbrc,  approve  of  the 
order  of  the  Superior  Court  by  which  the  appeal  was  dismiss- 
ed. And  we  think  it  was  jiropcrly  dismissed  at  the  costs  of 
the  plaintiff.  The  costs  which  the  bail  aie  required  by  the 
10th  section  of  the  11th  chapter  of  the  Revised  Code  to  pay 
on  the  scire  facias,  notwithstanding  they  may  be  afterwards 
discharged  by  the  death  or  surrender  of  the  principal,  or  oth- 
erwise, could  never  have  been  intended  to  include  such  as  are 
incurred  by  the  plaintiff' on  account  of  an  improper  and  inef- 
fectual  appeal. 

We  have  considered  the  case  as  if  the  plaintiff  were  enti- 
tled to  a  trial  at  the  term  at  which  the  scire  facias  is  return- 
ed as  having  been  made  known  to  the  bail  ;  such  was  his 
right,  undoubtedly,  by  the  express  terms  of  the  Revised  Stat- 
utes, chap.  10,  sec.  6 ;  but  in  the  Revised  Code  the  phraseol- 
ogy is  altered  ;  the  4th  section  of  the  11th  chapter,  enacting 
that  "  where  any  scire  facias  against  bail  shall  be  returned 
^executed,'  they  may  appear  and  plead  as  in  other  cases," 
This  seems  to  put  cases  of  this  kind  upon  the  same  footing 
with  issues  in  other  actions,  which,  by  virtue  of  the  31st  chap, 
of  the  Revised  Code,  section  57,  rule  13,  shall  be  tried  at  the 
term  next  succeeding  that  at  which  they  were  made  up.  The 
"decision  of  this  question  is  unnecessary  toour  judgment  in  the 
present  case,  and  we  allude  to  it  only  for  the  purpose  of  pre- 
venting the  conclusion  that  our  opinion  upon  it  favors  the 
view  taken  of  it  by  the  plaintiff. 

Per  Curiam,  Judgment  affirmed. 


IJ^  THE  SUPKEME  COUKT. 


Herrington  v.  The  Schooner,  Hugh  Chisholm, 


JESSE  HERRINGTON  v.  THE  SCHOONER,  HUGH  CHISHOLM. 

The  meaning  of  the  Statute,  Revised  Code,  eh.  7,  sees.  27  and  28,  concerning 
liens  on  vessels  for  repairs,  &c.,  is  that  the  attachment  given  for  the  enforce- 
ment of  the  lien,  must  be  issued  so  as  to  have  the  vessel  seized  before  she 
is  allowed  to  depart  from  the  port  or  place  of  repairs. 

Thi8  was  an  attachment,  tried  before  Howard,  J.,  at  the 
last  Term  of  Washington  Superior  Court. 

The  attachment  was  taken  out  under  the  27  and  28  sections 
of  the  7th  chapter  of  the  Revised  Code,  and  levied  upon  the 
Schooner  Hugh  Chisholm,  for  repairs  done  on  tliat  vessel, 
Tlie  repairs  were  done  in  the  county  of  Washington,  in  this 
State,  during  tlie  3'ear  1857 ;  and  the  attachment  was  taken 
out  on  the  4tli  day  of  May,  1858.  The  vessel  was  owned 
])y  one  G.  L.  Moore,  a  citizen  of  Martin  county,  in  this  State? 
during  the  time  she  was  undergoing  repairs,  and  in  the  course 
of  trade  he  sent  her  to  Norfolk,  in  the  State  of  Virginia,  where 
slie  was  seized  under  an  attachment  issued  by  the  Circuit 
Court  of  Norfolk  county,  Va. ;  upon  a  personal  obligation  of 
the  said  Moore,  and  judgment  having  been  rendered  thereon 
for  the  plaintiif,  execution  issued,  and  she  was  sold  at  public 
auction,  to  one  Webb.  After  this,  on  the  return  of  the  Schoo- 
ner to  North  Carolina,  this  attachment  was  issued. 

These  facts  were  agreed,  and  were  submitted  for  the  judg- 
ment of  the  Court ;  and  it  was  agreed  further,  that,  if  his 
Honor  should  be  of  opinion  with  the  plaintiif  on  the  law  gov 
erning  the  case,  judgment  should  be  rendered  for  $159,  with 
interest ;  but  otherwise  that  the  proceeding  should  be  dis- 
missed. 

The  Court,  on  consideration,  gave  judgment  for  the  plaintiff, 
and  the  owners  of  the  vessel  prayed  and  obtained  an  appeal. 

JI.  A.  GilUcwi,  for  the  plaintiff. 
W-msto?i,  Jr.,  for  the  defendant. 

Pearson,  C.  J.  The  case  turns  on  the  construction  of  the 
Statute,  Rev.  Code,  ch.  7.,  sees.  27  and  28,  title  "Attachment ;" 


DECEMBEK  TEEM,  1860. 


Herrington  v.  The  Schooner,  Hugh  Chisholm. 


and  the  question  is  within  what  time  must  the  attachment  be 
issued  ? 

No  time  is  expressed  in  the  Statute,  and  several  construc- 
tions were  contended  for  on  the  argument,  for  the  purpose  of 
dxing  the  time : 

1.  The  time  is  unlimited  and  the  lieu  continues,  and  the  at- 
tachment may  be  issued  at  any  time  after  the  work  is  done,  or 
the  provisions  furnished — or  at  least  until  there  be  a  presump- 
tion of  payment,  to  wit,  ten  years ;  or  the  claim  is  barred  by 
the  statute  of  limitations  applicable  to  the  action  of  assump- 
sit, to  wit,  three  years. 

2.  The  attacliment  may  be  issued  within  a  reasonable  time, 
to  be  judged  of  by  court,  according  to  circumstances. 

3.  The  lien  is  in  prc^enii^  and  the  attachment  must  be  is- 
sued before  the  vessel  leaves  the  port,  or  the  place,  where  the 
work  is  done. 

■I.  The  attachment  must  be  issued  before  the  vessel  leaves 
the  State  and  goes  out  of  the  jurisdiction  of  its  courts,  or  at 
«,11  events  if  the  vessel  goes  out  of  the  jurisdiction  and  passes 
into  the  hands  of  a  purchaser  for  valuable  consideration,  the 
lien  is  gone  and  the  attachment  cannot  rightfully'  issue,  should 
the  vessel  happen  to  return  to  the  State. 

The  first  construction  leads  so  manifestly  to  an  absurdity 
and  to  injustice,  that  it  cannot  be  entertained.  Suppose  a  vessel 
is  repaired  in  Wihnington  and  goes  to  ISTewbern,  where  pro- 
visions are  furnished;  then  to  Washington,  where  she  is  again 
repaired;  and  so  continuing  from  time  to  time,  and  at  differ- 
ent i>hices  to  be  repaii'ed,  furnished,  equipped  and  stored,  un- 
til she  is  covered  over  with  liens,  as  nuuicrons  as  the  barna- 
cles on  Iter  bottom.  The  Statute  does  nut  make  the  pi'iorit}' 
of  lien  depend  on  the  priority  of  suing  out  the  attachment, 
but  provides,  "such  debts  shall  have  a  lien  on  the  shij^,  &c., 
and  sliall  \iQ,  preferred  to  all  other  liens  thereon^  except  mari- 
oers  wages."  Can  each  and  every  one  of  these  different  liens 
be  preferred  to  all  other  liens ?  the  first  to  all  the  others?  the 
last  to  all  the  others?  and  the  intermediate  ones  to  all  the  oth- 
ers 1\\\     Or,  suppose  the  vessel  be  encumbered  with  liens,  is 


IN  THE  SUFEElVrE  COUKT. 


Herrington  v.  The  Schooner,  Hugh  Chisholm. 


-iold  to  a  pwrcliaser  for  valuable  consideration,  so  as  to  give 
him,  not  a  mere  lien,  but  the  absolute  ownership,  does  he  take, 
■subject  to  all  of  these  liens,  in  regard  to  the  existence  of  which 
ao  means  of  information  are  afforded  to  him  I  This  would  be 
manifestly  unjust,  and  yet  it  must  be  so,  if  the  liens  continue, 
and  can  be  enfoi-ced  bj  attachment  at  any  indefinite  time  ; 
for  it  is  decided  that  a  tliird  person  cannot  interplead,  on  the 
ground  that  in  a  proceeding  under  the  statute  the  creditor 
has  a  right  to  liave  his  debt  satisfied  oat  of  the  vessel  attach- 
ed, let  it  belong  to  whom  it  may ;  £rigt  Ida-rcellns,  3 
Jones'  Rep.  83.  To  meet  this  absurdity  and  injustice,  the 
counsel  admitted  that  the  statute  was  defeetive  and  oaight  to 
be  amended  ;  the  failure  to  fix  a  time  being,  as  he  supposed,  an 
oversight ;  l)ut  he  iiisisted,  that  as  the  law  now  s-tands,  the 
time  is  indefinite.  "We  certainly  cannot  adopt  this  construc- 
tion, if  there  be  any  other,  by  which  to  escape  from  such  gross 
absurdity  and  injustice  ;  for  we  are  not  at  Mberty  to  adopt  the 
suggestion  of  an  oversight,  and  suppose  that  the  Legislature 
forgot  to  insert  a  provision  in  respect  to  time.  Our  duty  is  to 
fake  the  statute  as  it  is,  and  to  assume  that  it  contains  all  that 
the  law-makers  intended. 

2.  The  reuiedy  by  attachment  must  be  pursued  within  a 
i-easonable  time.  When  the  common  law  imposes  an  obliga- 
tion, as  for  the  holder  of  a  bill  to  give  notice,  or  one  contracts 
to  do  a  thing,  as  to  execute  a  deed,  and  no  time  is  fixed,  the 
iaw  imjilies  th-at  it  n^ust  be  done  within  a  reasonable  time  ;  but 
we  know  of  )u»  vida  oi'  construction,  by  wliich  the  words  of  a 
statute  can  be  added  to-,  aud.  a  tin^ie  fixed  by  an  implieation  of 
law.  Tlie  time  must  l>o  fixed  b-y  the  words  on  the  construc- 
(ion  of  the  statute,  and  the  iuiplicaticn  of  a  reasonable  tiine 
ih  inadmissible.  So  tliis  suggestion  is  as-  untenable  as  that  in 
respect  to  the  ten  yeai's,  w  the  three- years-  as  a  statute  of  lini- 
itations;  but  if  we  wei-e  at  liberty  to  in.terpolate,  "such  lieii 
shall  continue,  provided  the  attachment  be  issued  v/ithin  rea- 
sonable time;-'  it  would  not  aid  the  attaching  creditor  in  our 
case,  because  the  facts  are  not  set  out  so  as  to  enable  the  coiirS 
to  see  that  the  attachment  did  issue  in  reasonable-  time.    Th^ 


DECEMBER  TERM,  1860. 


Henington  v.  The  Schooner,  Hugh  Chisholm. 


work  was  done  some  time  in  the  year  1857,  and  the  attach- 
ment issued  in  May,  1858.  AVe  are  inclined  to  think  this  was 
not  in  reasonable  time,  considering  the  circumstance  that  the 
vessel  had  gone  out  of  the  State. 

In  this  connection  it  may  be  well  to  dispose  of  the  fourth 
unggostion  that  the  lien  ceases,  and  the  attachment  cannot  be 
issued  after  the  vessel  has  gone  out  of  the  jurisdiction  of  our 
courts,  particularl}',  if  she  passes  into  the  hands  of  a  third 
person  as  a  purcliaser  for  valuable  consideration.  To  this  the 
game  objections  are  applicable,  as  above  pointed  out  in  res- 
pect to  reasonable  time.  The  Statute  contains  no  provision, 
and  these  woi-ds  cannot  be  added  by  imjilication,  however  rea- 
sonable it  may  seem  to  be  that  such  a  clause  should  have  been 
inserted.  Cc»nsequently,  either  the  time  is  unlimited,  or  it  re- 
stricted to  the  present,  i.  e.,  when  the  work  is  done,  or  the  ar- 
ticles are  fui-nished ;  so  that  if  the  vessel  is  allowed  to  leave 
the  port  or  place,  the  lien  and  right  to  attach  cannot  be  after- 
wards resorted  to. 

3.  We  are  of  opinion  that  the  latter  is  the  proper  construc- 
tion. 

Several  considerations  sustain  this  conclusion :  If  the  lien 
must  be  enforced  on  the  spot,  that  is,  before  the  vessel  leaves 
the  port  or  place  of  repairs,  &c.,  the  absurdity  and  injus- 
tice, which  form  an  inseparable  objection  to  the  other  con- 
structions are  avoided ;  for  the  provision,  "such  debt  shall  be 
preferred  to  all  other  liens,  except  Mariners  wages,"  is  then 
sensible  and  is  consistent  with  justice ;  because  persons  having 
a  prior  lieu  by  mortgage,  or  hypothecation,  are  benefitted  by 
having  the  vessel  repaired  or  furnished,  so  as  to  enable  her  to 
proceed  on  the  vo3'age,  as  well  as  the  ultimate  owners  ;  and 
die  work  may  very  properly  be  considered  as  done  for  the  ben- 
efit of  all  who  are  concerned  in  her;  in  fact  the  very  nature 
of  a  lien,  "preferred  to  all  other  liens,"  by  necessary  implica- 
tion must  be  enforced  instanter. 

By  comparing  tlie  statute  of  New- York,  (Revised  Statutes 
of  1829,  pt.  3,  ch.  8,  tit,  8,  sec.  1,)  with  the  statute  under  con- 
*idcration^  tJje  first  section  is  worded  so  precisely  like   the  27 


m  THE  SUPKEME  COURT. 


Hemngtoh  v.  The  Schooner,  Hugh  Chisholm. 


sec.  of  ours,  as  to  show  that  the  one  was  copied  from  the  oth- 
er. The  second  section  of  the  statute  of  l!^ew  York,  restricts 
the  lien  to  twelve  days,  where  the  vessel  departs  from  the  port 
of  repairs  to  any  other  port  of  the  State,  and  it  is  to  cease 
when  the  vessel  leaves  the  State.  In  place  of  this,  the  28th 
section  of  our  statnte  is  substituted,  giving  the  right  to  issue 
an  attachment,  and  no  restriction  as  to  time,  is  inserted.  It 
is  true,  that  the  statute  of  another  State  cannot  be  used  in  aid 
of  the  construction  of  ours,  by  adding  to,  or  taking  from  its 
words  ;  but  reference  may  be  made  to  it  for  the  sake  of  an  in- 
ference ;  and  it  is,  obviously,  a  fair  inference  that  the  restric- 
tion in  respect  to  time,  was  not  omitted  by  an  oversiglit,  but 
because  it  was  considered  unnecessary ;  the  necessity  for  it 
being  superseded  by  the  provision  allowing  an  attachment ; 
which  follows,  as  a  matter  of  course,  provided  the  attachment 
was  required  to  be  issued  on  the  spot,  and  is  a  non  sequitur 
if  the  attachment  could  be  issued  at  any  future  indefinite 
•time. 

This  construction  is  also  sustained  by  a  consideration  of  the 
object  of  the  statute,  and  the  mischief  to  be  remedied.  The 
words  of  the  statute  are,  "  any  ship,  &c.,  within  this  State  ;" 
making  no  distinction  between  foreign  and  domestic  vessels. 
In  regard  to  the  former,  the  persons  making  repairs,  &c.,  had 
a  lien  on  the  vessel  for  a  prescribed  time  according  to  tlie  gen- 
eral Maritime  law,  and  the  object  of  the  statute  was  to  give 
this  lien  a  preference  over  all  other  liens,  except  Mariners  wa- 
ges, and  to  give  as  a  cumulative  remedy  the  right  to  sue  out 
an  attachment  against  the  vessel,  which  was  a  quick  mode  of 
proceeding  in  the  courts  of  this  State.  In  regard  to  the  lat- 
ter, or  domestic  vessels,  which  is  our  case,  the  general  Mari- 
time law  had  no  application,  "as  to  repairs,  &c.,  in  a  port  in 
the  State  to  whicli  the  vessel  belongs ;  the  case  is  governed 
altogether  by  the  local  law  of  the  State,  and  no  lien  is  implied, 
unless  to  be  recognized  by  that  law  ;"  The  General  Smith,  4 
Wheat,  438 ;  Peyroux  v.  Howard,  7  Peters,  341.  The  com- 
mon law  principle  of  lien,  in  favor  of  bailees,  e.  g.,  common 
carriers,  inn-keepers,  tailors,  millers,  &c.,  did  not  apply,  for 


DECEMBER  TERM,  1860. 


Herrington  v.  The  Schooner,  Hugh  Chisholm. 


that  is  founded  on  a  bailment,  where  the  party  has  the  thing 
in  possession,  and  is  allowed  to  retain  it  until  the  charges  are 
paid ;  wliereas,  one  who  makes  repairs  on  a  vessel,  or  furnish- 
es her  with  provisions,  coal,  &c.,  has  not  the  thing  in  posses- 
sion, and  therefore  had  no  lien  according  to  the  local  law,  and 
was  forced  to  sue  the  owner  or  master,  as  for  a  personal  debt. 
So,  in  regard  to  domestic  vessels,  the  object  of  the  statute 
took  a  wider  scope  than  simply  to  make  a  lien  which  was  al- 
ready recognised  by  law,  preferable  to  all  other  liens,  and  to 
give  a  summary  remedy,  the  main  purpose  being  in  respect 
to  domestic  vessels  to  create  a  lien  by  the  local  law,  by  extend- 
ing to  such  cases  tlie  principle  of  common  law,  in  respect  to 
property  which  is  in  possession  by  bailment ;  on  the  ground 
that  one  who  furnishes  provisions,  or  i-epairs  a  vessel,  although 
not  in  possession,  comes  witliin  the  like  reason,  as  an  inn  kee- 
per, who  feeds  a  horse,  or  a  tailor  who  makes  or  mends  a  coat, 
and  the  remedy  is  to  allow  the  vessel  to  be  taken  by  attach- 
ment, so  as  to  compel  payment.  So  the  question  is  narrowed 
to  this :  how  far  did  the  common  doctrine,  in  respect  to  bailees, 
extend  ?  For  there  is  no  ground  to  assume  that  the  Legisla- 
ture intended  to  go  beyond  it.  The  extent  of  the  conmion 
law  doctrine  is  settled  :  such  bailees  have  a  lien  which  is  "pre- 
ferred to  all  other  liens,"  but  it  must  be  enforced  on  the  spot. 
Jones  V.  Thaiiue,  8  Mod.  172.  "By  the  custom  of  the  realm, 
if  a  man  lie  in  an  inn  one  night,  the  inn-keeper  may  detain 
his  horse  until  he  be  paid  for  the  expenses ;  but  if  he  give 
him  credit  for  that  time  and  let  him  depart  without  payment, 
then  he  has  wai  -ed  the  benefit  of  that  custom  b}^  his  own  con- 
sent to  the  departure,  and  shall  never  afterwards  detain  the 
horse  for  that  expense."  The  law  has  been  considered  settled 
ever  since  ;  see  Leigh's  Ni.  Pri.  sec.  1495,  and  other  text 
books.  So  that  the  object  of  the  statute,  and  the  mischief  to 
be  remedied,  wliich,  according  to  a  well  established  rule  of 
construction  is  of  great  weight  in  fixing  its  meaning,  (Dwarris 
on  Statutes,  695)  show  the  meaning  to  be  to  give  a  lien  which 
is  preferred  fo  all  other  liens,  with  an  exception  in  favor  of 
Mariners  wages,  (which  stands  on  peculiar  grounds,)  which 


10  m  THE  SUPREME  COURT. 

Sleight  V.  Watson. 

kind  of  lien,  from  its  nature  implies  that  it  sliall  be  enforced 
mstanter,  consequently  the  attachment  must  be  issued  so  as  to 
have  the  vessel  seized  before  she  is  allowed  to  depart  from  the 
port  01"  place  of  repairs. 

This  construction  obviates  all  difEculty  and  complication  in 
which  the  subject  must  otherwise  be  involved. 

Tiie  judgment  in  the  Court  below  is  reversed,  and  upon  the 
case  agreed  the  proceeding  is  dismissed. 

Per  Cukiam,  Judgment  reversed. 


FRANCES  SLEIGHT  v.  JOSHUA  WATSON. 

^Vhel■e  A  sent  to  B  a  letter,  stating  that  if  B  and  C  wished  to  hire  any  ne- 
groes for  the  next  year,  Le  would  assign  as  their  security^  it  was  Held  that 
the  plaintiff  having  hired  certain  slaves  to  B  and  C  on  the  faith  of  this  let- 
ter, A  was  liable  on  his  refusal  to  sign  a  note  for  the  hire,  and  that  B  and 
C  having  failed  to  pay  at  the  end  of  the  credit,  (having  become  insolvent) 
the  measure  of  damages  was  the  price  agreed  to  be  paid  for   the   hire. 

Held  further,  that  no  demand  on  B  and  G  was  necessary  previously  to  bring- 
ing suit.     Nor  was  one  necessary  to  be  made  on  A. 

Held  further,  that  the  plaintiff's  having  received  a  note  for  the  hire  from  B 
and  (.'  aftM-  .\  s  refusal  to  sign,  was  no  discharge  of  the  latter. 

This  was  an  action  of  assumpsit,  tried  before  Dick,  J  ,  at 
the  Spring  Term,  186     cf  Washington  Superior  Court. 

The  |)hiintitf  produced  in  evidence  tiie  following  paper- 
wriring,  viz  :  "This  is  to  say  if  Mr.  John  T.  Phelps  and  Mr. 
Jol.'u  ]].  Golett  should  wish  to  hire  anv  negroes  for  the  next 
year,  that  I  will  assign  as  their  security  for  such  hire.  De- 
cember 26lh,  1855.  Joshua  Wat  on." 

This  instrument  was  written  at  Hilliardstown,  in  the  county 
of  Kash,  on  the  day  it  bears  date,  and  sent  by  mail  to  J.  B. 
Golett. 

The  plaintiff  then  showed  that  on  the  1st  day  of  January, 
1856,  she  hired  to  Phelps  and  Golett  three  slaves  for  the  en- 


DECEMBEK  TEEM,  1860.  H 


Sleight  V.  Watson. 


suiiio^  year,  at  the  price  of  $495  ;  tliat  at  the  time  of  hiring 
iiaid  shives,  the  above  instrnnient  was  shown  to  her,  and  that 
she  hired  the  slaves  on  the  fairli  of  it. 

In  tlie  niontli  of  elannary,  Phelps  and  Golett  prepared  a 
bond,  of  which  the  following  is  a  copy  : 

"$495.  On  the  first  day  of  January,  1857,  we  promise  to 
pay  Frar)ces  Sleight  or  order  four  hundred  and  ninety-live 
dollars,  value  received  in  hire  of  negro  men,  Jordan,  Nelson 
and  Harry,  for  the  year  1856,  and  we  promise  to  furnish  said 
negroes  with  the  usual  clothing.  Witness  our  hands  and  seals 
this  1st  of  January,  1856.  Joun  B.  Golett,     [seal.] 

JouN  T.  PiiKLi's,     [seal.J' 

Some  time  in  (he  same  month,  (January)  the  defendant 
wrote  his  name  on  the  back  uf  this  bond,  but  on  the  next  day. 
hearing  that  Plielps  had  made  a  deed  of  trust,  he  obtained 
the  paper  from  Golett  and  erased  his  name.  Afterwards,  du- 
ring the  same  month,  the  note  was  tendered  to  the  plaintiff, 
who  objected  to  receiving  it  on  account  of  the  erasure  of  the 
defendant's  name,  but  on  hearing  from  her  son  that  a  gentle- 
man of  the  bar  had  said  the  defendant  was  liable,  she  took  it. 
Golett  paid  on  this  bond  $195.  When  the  note  fell  due,  it 
appeared  that  Phelps  and  Golett  had  both  become  insolvent, 
and  have  remained  so  ever  since. 

William  C.  Sleight,  the  agent  of  plaintiff,  testitied  that  ho 
told  defendaiit  before  this  suit  was  brought,  that  neither 
Phelps  or  Golett  had  paid  plaintiff,  and  that  he  would  have 
to  do  so  ;  to  which  he  replied,  "  plaintiff'  must  get  it  by  law.'* 
The  defendant  contended, 

1.  That  in  order  to  entitle  plaintiff  to  recover,  she  had  to 
prove  a  demand  for  the  money  on  Phelps  and  Golett. 

2.  That  no  sufficient  demand  on  the  defendant  had  been 
made. 

3.  That  the  note  given  by  Thelps  and  Golett  should  have 
been  tendered  the  defendant  before  suit. 

4.  That  plaintiff  had  not  shown  that  she  had  callcil  on  tlie 
defendant  to  sign  the  paper  as  surety  for  Phelps  and  Golett, 
and  that  he  refused. 


12  £K  THE  SUPREME  COURT. 

Sleight  V.  Watson. 

5.  That  there  was  no  consideration  for  the  promise  sued  on. 

6.  That  the  taking  of  the  bond  with  the  name  of  the  de- 
fendant erased,  discharged  the  defendant. 

These  objections  were  over-ruled  b^^  the  Court,  and  the  de- 
fendant excepted. 

Yerdict  and  judgment  for  the  plaintiif,  and  appeal  by  the 
defendant. 

//.  A.  Gilliam  and  Ilines,  for  the  jjlaiutiff. 
Winston,  Jr.,  for  the  defendant. 

Manly,  J.  The  letter  of  the  defendant  sent  to  John  B. 
Golett,  under  date  of  26th  of  December,  1855,  was  a  general  let- 
ter of  credit  in  behalf  of  Plielps  and  Golett  for  any  slaves  they 
might  think  proper  to  hire  for  the  year  1856.  It  is  similar  to 
a  well-understood  commercial  paper,  whereby  the  person  w^io 
gives  it,  is  bound  to  each  and  every  one  who  may  trade  with 
the  person  accredited,  upon  the  faith  of  it.  The  specilic  i>n- 
dertaking,  thi-ough  this  paper,  is  to  sign  with  Phelps  and 
Golett  for  any  slaves  they  might  hire ;  which  is,  in  substance, 
an  undertaking,  on  the  part  of  Watson,  to  make  himself  re- 
sponsible for  such  hire,  by  executing  with  Phelps  and  Golett 
a  promissory  note,  or  notes,  for  the  same.  The  case  discloses 
that  the  slaves,  in  point  of  fact,  were  hired  from  the  plaintiff 
by  Phelps  and  Golett,  and  delivered  to  them  upon  the  faith 
of  this  paper,  and  afterwards,  wdien  the  note  was  presented 
for  the  signature  of  Watson,  he  declined  executing  it.  This 
was  a  breach  of  his  undertaking,  and  we  think  he  is  responsi- 
ble in  this  action  for  the  damages. 

It  is  further  stated,  as  c  fact  in  the  case,  that  at  tlie  time  the 
hire  fell  due,  viz.,  on  the  1st  of  January,  1857,  Phelps  and 
Golett  were  both  insolvent,  and  have  so  continued  ever  since  ; 
and  upon  this  state  of  the  case,  it  is  clear  the  measure  of  dam- 
ages is  the  amount  of  the  sum  agreed  to  be  paid  by  Phelps 
and  Golett  for  the  hire — less  the  amount  actually  paid  by  the 
latter.  This  balance  was  the  amount  for  which  the  recovery 
was  effected,  and  wq  see  no  error  in  it. 


DECEMBER  TERM,  1860.  13 

Sleight  V.  Watson. 

The  first  objection  to  the  recovery,  raised  by  the  defendant 
is,  that  a  demand  ought  to  have  been  made  of  Phelps  and 
Goleti  before  suit  was  brought.  This,  we  think,  untenable. 
Defendant  violated  his  engagement,  and  was  in  default  when 
he  refused  to  sign^  and  thus  secure  the  stipulated  hire.  The 
measure  of  the  injury,  arising  from  this  default,  was  full  and 
complete,  when  the  hirers  became  insolvent  and  unable  to 
pay,  within  the  period  of  credit.  It  was  not  necessary,  either 
as  a  preliminary  to  the  suit,  or  as  proof  of  the  amount  of  dam- 
ages, to  show  a  demand  and  refusal. 

The  second  objection  is  also  untenable.  No  demand  of  the 
defendant,  Watson,  was  requisite.  A  demand  or  notice  of 
claim  is  requisite  where  the  party  stands  in  a  fiduciary  rela- 
tion to  another,  and,  in  that  capacity,  has  the  money  or  pro- 
perty of  the  other,  in  some  cases  of  public  officers,  and  be- 
tween co-sureties,  when  the  relation  is  changed  by  the  pay- 
ment of  the  debt  by  one  ;  but  no  one  of  these  relations,  nor 
an}'-  similar  one,  subsists  between  the  parties  here.  The  de- 
fendant is  bound  to  keep  in  mind  his  default,  of  which  he  had 
full  cognizance,  and  has  no  right  to  complain  that  he  has  not 
been  reminded  of  it. 

But  if  a  demand,  in  such  a  case,  were  requisite,  it  seems  to 
be  fully  established  in  tliis  case  b^^  tlie  proofs.  The  agent  of 
the  plaintifip  called  upon  the  defendant  and  informed  him  that 
the  principals  had  not  paid  the  debt,  and  he,  Watson,  would 
have  it  to  do.  This  is  all  that  is  necessary  to  constitute  a  de- 
mand. 

We  do  not  think  there  is  any  thing  in  the  position  assumed 
in  the  third  objection.  Watson  was  not  a  party  to  the  note, 
and  could  not  entitle  himself  to  its  possession  as  a  matter  of 
legal  right  by  a  satisfaction  of  it.  A  tender,  therefore,  was 
not  obligatory,  and  after  the  answer  made  by  the  defendant 
to  the  demand,  would  have  been  wholly  impertinent  and 
useless. 

The  proofs  in  the  cause  leave  the  fourth  objection  without 
any  ground  to  rest  on.  The  note  was  presented  for  the  de- 
fendant's signature  and  he  refused  to  give  it,  for  the  specific 


14  IN  THE  SUPREME  COURT. 


Bond  V.  Hall. 

reason  that  one  of  tlie  pi'incipals  had  made  a  deed  of  trust. 
The  objection  is  not  that  the  application  did  not  come  from 
the  proper  source.  He  is  willing  to  sign,  and  does  sign,  and 
only  takes  the  paper  back  and  erases  it  when  he  heard  that 
Phelps  had  made  a  deed.  Under  the  circumstances,  the  prin- 
cipal obligors  to  the  contract  of  hiring,  may  well  be  regarded 
as  the  agent  of  the  others,  to  get  the  note  promised  and  hand 
it  over  to  the  obligee.  At  any  rate,  Watson,  upon  that  occa- 
sion, recognised  him  as  the  agent,  and  it  is  not  proper  for  him 
now  to  dispute  it.     He  dealt  with  him  as  such. 

The  principles  involved  in  the  other  two  objections  cannot 
be  maintained.  The  right  to  the  use  of  the  slaves  for  a  year 
was  parted  with  by  the  plaintiff,  upon  the  faith  of  the  defend- 
ant's promise,  and  this  constituted  a  sufficient  consideration 
for  the  promise  ;  no  other  was  necessary.  The  taking  of  the 
note  afterwards  in  the  condition  in  wliich  it  was,  did  not 
waive  the  legal  effect  of  the  promise  to  sign  it — especially  as 
it«was  accepted  with  an  express  repudiation  of  any  such  in- 
ference. The  ])laintiff  was  informed  by  her  agent  that  the 
defendant  would  be  still  bound,  and  thereupon,  and  with  that 
miderstanding,  she  took  the  note.  This  amounts  to  no  dis- 
charge of  the  defendant's  liability.     There  is  no  error. 

Pee  Curiam,  Judgment  affirmed. 


A.  H.  BOND,  Administrahr,  v.  J.  H.  HALL. 

To  leave  a  question  to  the  jury,  without  some  evidence  bearing  upon  the  mat- 
ter, and  upon  which  they  might  base  their  verdict,  is  error. 

The  presentment  and  collection  of  an  order  by  one  to  whom  it  was  not  en- 
dorsed, prima  facie,  makes  the  collector  a  debtor  to  the  payee. 

This  was  an  action  of  assumpsit,  tried  before  Howard,  J., 
at  the  last  Fall  Term,  of  Chowan  Superior  Court. 
Thei'e  were  several  exceptions  to  the  ruling  of  his  Honor 


DECEMBER  TERM,  1860.  15 

Bond  V.  Hall. 

in  tliis  case,  but  as  only  one,  to  wit,  the  4th,  stated  in  the  bill,  is 
considered  by  this  Conrt,  the  others  are  omitted.  That  excep- 
tion is  as  follows :  "That  there  was  no  evidence  to  rebnt  the  pre- 
sumption that  the  order  collected  by  plaintifTs  intestate,  was 
etill  unaccounted  for."  The  plaintift'had  made  out  a  J'>?•^ma 
facie  case  by  the  evidence,  for  a  considerable  sum  of  money, 
all  of  which,  except  $59,  was  met  by  evidence,  that  the  par- 
ties had  had  a  settlement,  and  the  plaintiff's  intestate  had  ta- 
ken a  note  for  the  amount  referred  to  b}'  the  proof.  As  to 
the  overplus,  it  was  attempted  to  be  met  by  the  evidence  of 
one  Skinner.  He  testilied  that  in  the  fall  of  1859,  the  plain- 
tiff's intestate,  Clayton,  presented  to  him,  for  acceptance,  an 
order  drawn  on  hini  by  one  Rogerson,  in  favor  of  the  defen- 
dant. Hall,  for  $80,  that  he  accepted  the  order,  and  about  the 
1st  of  January,  18(50.  he  called  at  tiie  store  of  said  Clayton, 
when  tlic  same  order  was  pi-odiiced,  and  he  paid  it  to  him, 
(Clayton);  tliat  this  order  had  never  been  endorsed  b}^  the 
defendant.  Ilis  Honor,  in  res})ect  to  this  order,  charged  that 
it  not  having  been  endorsed,  and  having  been  presented  and 
collected  by  the  plaintiff's  intestate,  the  law  presumed  that  he 
was  acting  as  agent  of  the  defendant,  the  payee,  and,  there- 
fore, they  must  allow  it,  and  find  for  the  defendant,  unless  the 
evidence  in  the  case  satisfied  them  that  the  plaintiff's  intes- 
tate had  already  accounted  for  it.  This  was  excepted  to,  as 
above  stated. 

Verdict  for  the  plaintiff,  and  on  judgment  being  rendered, 
the  defendant  appealed. 

H.  A.  Gilliam,  for  the  plaintifl:'. 
Mines  and  Johnson,  for  the  defendant. 

Manly,  J.  In  considering  this  case,  we  have  confined  our 
■attention  to  a  single  exception,  the  fourth  in  order,  which  ob- 
jects to  the  instruction  of  the  Conrt  below,  in  respect  to  the 
money  paid  on  the  order  for  $80.  The  order  was  drawn  by 
one  Rogerson,  in  favor  of  Hall,  upon  T.  S.  Skinner,  and  t}i« 
latter  lestified  that  it  was  presented  unindorsed  to  liira,  by  the 


16  IN  THE  SUPKEME  COURT. 

Hockaday  v.  Parker. 

intestate,  A.  W.  Clayton,  and  that  he  paid  it  to  the  said  Clay- 
ton. This  raised  lyrimafacie^  an  indebtraent  to  that  amount 
from  Clayton  to  Ilall.  We  have  examined  the  statement  of 
proofs  in  this  case,  and  do  not  find  any  evidence  of  a  payment 
— of  a  credit  in  account,  or  other  settlement  of  the  same. 
When  his  Honor,  therefore,  submitted  it  to  the  jury  to  say 
whether  it  had,  or  had  not  been  accounted  for,  it  was  error. 
To  leave  a  question  of  fact  to  the  jury,  without  some  evidence 
bearing  upon  the  matter,  and  upon  which  they  might  base 
their  verdict,  is  to  invite  them  to  wander  into  the  field  of  con- 
jecture, and  to  act  upon  the  uncertain  suggestions  there  met 
with. 

The  case  was  admitted  to  turn,  in  one  aspect  of  it,  upon  the 
point  whether  the  money  received  by  Clayton,  upon  the  draft, 
payable  to  Hall,  was  ever  accounted  for  by  Clayton  with  Hall, 
and  this  being  left  to  the  jury,  without  evidence,  vitiates  the 
finding.  Cobb  v.  Fogleman^  1  Ired.  444 ;  Sutton  v.  Madre^  2 
Jones,  320. 

There  must  be  a  venire  de  novo. 

Per  Curiam,  Judgment  reversed. 


BENNET  HOCKADAY,  JidmV.  of  NORMAN  MATTHEWS  v.  ANSON 

PARKER. 

Where  the  land  of  one  of  two  sureties  of  a  third  person  was  sold  under  exe- 
cution for  the  debt,  and  the  other  surety  bid  it  off,  it  was  Held  that  an 
agi-eement  for  the  owner  of  the  land  to  pay  the  debt,  and  take  an  assign- 
ment of  the  bid  to  him,  was  not  affected  by  the  statute  of  frauds. 

This  was  an  action  of  assumpsit,  tried  before  French,  J.,  at 
the  last  Fall  Term  of  Harnett  Superior  Court. 

The  plaintiff  declared  for  money  paid  by  his  intestate  as 
co-surety  with  defendant  for  one  Strickland.  A  judgment 
had  been  obtained  on  the  debt  against  Strickland  and  the 


DECEMBER  TERM,  1860.  17 

Hockaday  v.  Parker. 

two  sureties,  Matthews  and  Parker,  (plaintiff's  intestate  and 
the  defendant)  and  execution  thereon  was  levied  on  Mat- 
thews' land,  which  was  sold  and  bid  off  by  Parker  and  one 
Stewart.  They,  after  this,  came  to  an  agreement,  that  Mat- 
thews should  take  the  whole  debt  on  himself  and  should  sat- 
isfy the  execution  ;  in  consideration  of  which  understanding, 
they  assigned  their  bid  for  his  land  to  him. 

The  counsel  for  the  plaintiff  requested  the  Court  to  charge 
the  jury  : 

1.  That  tiie  agreement  of  the  intestate  (Matthews)  to  satis- 
fy the  execution  upon  the  assignment  of  the  bid  of  Stewart 
and  the  defendant,  not  being  reduced  to  writing,  was  void 
under  the  statute  of  frauds.  The  Court  declined  to  give  this 
instruction. 

2.  The  plaintiff  then  asked  his  Honor  to  instruct  the  jury, 
that  if  they  believed  the  evidence  for  the  defendant,  there  was 
combination  and  fraud  on  the  part  of  Stewart  and  the  defend- 
ant, and  that  the  plaintiff' could  not  recover. 

3.  That  if  the  jury  believed  that  the  promise  of  the  plaintiff" 
was  merely  to  satisfy  the  execution  and  not  to  discharge  the 
defendant  from  his  liabilit}^  as  surety,  the  plaintiff  was  enti- 
tled to  recovei-. 

The  last  two  instructions  the  Court  declined  giving,  for  the 
reason,  that  there  was  no  evidence  to  sustain  them.  Plain- 
tifl''s  counsel  excepted. 

Yerdict  for  defendant.     Judgment  and  appeal  by  plaintiff. 

JVeil  McKay ^  for  the  i)laintiff. 

No  counsel  appeared  for  the  defendant  in  tiiis  Court. 

Manly,  J.  An  analysis  and  proper  understanding  of  the 
facts  of  this  case,  will  show,  as  we  conceive,  that  the  instruc- 
tion first  asked  for  by  the  plaintiff,  is  based  upon  an  erroneous 
view  of  their  substance  and  effect.  The  engagement  of  the 
plaintift''s  intestate  to  pay  the  whole  judgment  against  himself 
and  Parker,  as  the  sureties  of  Strickland,  is  not  a  promise  to 
pay  the  debt  of  another,  but  an  undertaking  on  the  part  of 

2 


18  IN  THE  SUPREME  COURT. 

Hockaday  v.  Parker. 

Matthews,  for  a  consideration,  to  make  that  debt  his  own  in 
respect  of  his  co-sureties. 

It  was  competent  for  Matthews  to  make  this  arrangement, 
which  was  simply  a  mode  of  making  payment  for  the  assign- 
ment of  the  right  to  call  for  a  title  to  the  land.  His  pro- 
mise to  pay  a  specific  sura  to  Parker  for  the  right,  would 
have  been  obligatory  as  a  promise  based  npon  a  sufficient 
consideration  moving  from  one  party  to  the  other.  It  does 
not  change  the  nature  or  binding  force  of  the  promise,  that  it 
is  to  extinguish  a  debt  which  Parker  owes  to  another.  It  is 
still  a  mode  by  which  Matthews  pays  his  own  debt,  and  the 
promise,  on  his  part,  is  simpl_y  to  that  purport  and  effect.  Tlie 
provision,  therefore,  of  the  Revised  Code,  (chap.  50,  sec.  15) 
opposes  no  obstacle  to  the  legal  eiiicacy  of  the  intestate's 
agreement.  Nor  does  the  eleventh  section  stand  in  the  way  ; 
for  the  Court  has  repeatedly  held  tluit  an  assignment  of  a  bid 
at  a  sale  of  lands,  under  a  Ji.  fa.,  is  valid,  without  writing. 

The  view  which  we  have  thus  taken  of  the  promise  of  Mat- 
thews, disposes  of  the  merits  of  the  case  in  respect  of  all  redress 
in  a  court  of  law.  The  promise  of  Matthews  being  to  pay  hig 
own  debt,  it  follows  when  he  paid  it,  it  was  not  money  paid 
as  the  co-surety  of  Parker  and  to  his  use,  for  which  the  stat- 
ute gives  the  remedy,  at  law.  Revised  Code,  ch.  110,  sec.  2. 
The  substance  of  the  Court's  instruction,  therefore,  was  cor-^ 
rect,  viz.,  that  upon  the  evidence,  the  plaintiff  could  not  re- 
cover. 

The  dubious  aspect  of  the  case  has  arisen  out  of  the  unex- 
plained and  surprising  folly  of  a  man,  who  being  able  to  pay, 
suffers  his  land  to  be  sold  at  a  sacrifice  and  immediately  buys 
it  back  at  a  great  advance.  We  are  unable  to  understand  this 
from  any  thing  stated  in  the  case.  Whether  it  may  not  have 
been  effected  by  combination  and  fraud  between  Parker  and 
Stewart  and  others,  as  suggested  in  the  second  prayer  for  iu; 
struction,  we  cannot  say.  Such  fraud  might  account  for  it, 
but  we  find  no  proof  to  sustain  the  suggestion. 

The  instruction  asked  for,  therefore,  in  the  second  place,  was 
properly  refused  by  the  Court,  because  it  was  hypothetical 


DECEMBER  TERM,  1860.  19 

State  V.  Peter. 

and  without  evidence  to  sustain  it.  If  there  had  been  evi- 
dence, the  remedy  would  probably  have  been  held  to  be  in 
another  forum  ;  where  the  parties  might  be  regarded  as  still 
standing  in  the  relation  of  co-sureties,  notwithstanding  the 
agreement  and  promise  to  the  contrary. 

The  instruction  asked  for  in  the  third  place,  stands  upon 
the  same  footing  with  the  last,  resting  upon  no  foundation  in 
the  ])roofs.     It  was,  also,  properly  refused  by  the  Court. 

There  is  no  ei'ror. 

Per  Curiam,  Judgment  affirmed. 


STATE  V.  PETER,  a  Slave. 


The  inference  arising  against  the  truth  of  a  charge  of  rape,  from  a  long  silence 
on  the  part  of  the  female,  is  not  a  presumption  amounting  to  a  rule  of  law, 
but  is  a  matter  of  fact,  to  be  passed  on  by  the  jury. 

The  word,  "person,"  in  the  5th  section  of  the  34  ch.  of  the  Revised  Code, 
(punishmg  rape)  includes  slaves,  free  negroes  and  free  persons  of  color,  as 
well  as  white  men.  • 

Indictment  for  a  rape,  tried  before  French,  J.,  at  the  last 
Term  of  New  Hanover  Superior  Court. 

The  rape  was  alleged  to  have  been  committed  by  the  defen- 
dant, who  is  a  slave,  on  tlie  body  of  ISTarcissa  Craig.  There 
was  also  a  count,  for  an  assault  witli  an  intent  to  commit  a 
rape. 

JVarcissa  Craig  sw^ore,  that  about  the  first  of  the  preceding 
May,  about  daylight  in  the  morning,  the  prisoner  came  to  her 
room  and  had  carnal  knowledge  of  her  person,  forcibly,  and 
against  her  will ;  that  she  had  on  her  night  clothes  at  the  time, 
and  they  were  made  bloody  by  the  act  of  the  prisoner ;  that 
her  father  went  to  Smithville  before  day,  and  she  was  left 
alone ;  that  she  told  no  one  of  it  until  about  two  weeks  after- 
\vard8,  and  then  she  told  her  aunt,  Mrs.  Spiver;  that  her  fath- 


20  IN  THE  STTPEEME  COUET. 

State  V.  Peter. 

er  returned  home  the  next  day  after  the  offense  was  committed, 
and  she  saw  him  every  day  for  two  or  three  weeks ;  that  when 
the  prisoner  was  committing  the  act,  she  cried  aloud ;  that  her 
cousin,  Mrs.  Howard,  resided  one  or  two  hundred  yards  dis- 
tant from  her  father's  house,  and  her  aunt,  Mrs.  Spiver,  about 
half  a  mile ;  that  she  and  Mrs.  Howard  were  not  on  friendly 
terms ;  that  Peter  had  a  wife  at  Mrs.  Howard's ;  that  she  did 
not  like  him  nor  his  wife,  because  they  were  sancy  to  her ; 
that  four  or  five  days  after  the  offence  was  committed,  Peter 
came  to  the  house  where  she  and  her  father  and  brother  were, 
and  sitting  down  familiary  in  the  piazza,  had  a  conversation 
with  her  father  and  brother;  that  she  did  not  tell  her  father, 
because  she  was  afraid  and  ashamed  to  do  so ;  that  her  lather 
was  drinking  when  he  came  home ;  that  she  had  never  had 
any  monthly  sickness. 

Mrs.  Spiver  testified  that  !Narcissa  came  to  her  house  about 
the  middle  of  May,  and  told  her  of  the  offense  committed  by 
the  prisoner,  as  she  had  narrated  it  before  the  court ;  that  she 
showed  her,  her  night  clothes,  and  they  were  bloody ;  she 
stated  further,  that  the  witness,  !Narcissa,  had  never  had  her 
monthly  sickness. 

Joseph  N.  Burroughs  stated,  that  he  arrested  the  prisoner 
on  the  6th  of  June,  and  tied  him  in  his  kitchen  ;  that  he  over- 
heard a  conversation  between  the  prisoner  and  a  negro  woman, 
in  which  the  latter  said  to  the  former,  "what  did  you  do  it  for  ? 
did  you  not  know  it  would  carry  you  to  the  gallows  ?"  to 
which  the  prisoner  replied,  "  I  am  sorry  for  it."  There  was 
some  other  testimony,  not  necessary  to  be  stated. 

The  counsel  for  the  defendant,  insisted  that  the  witness,  Nar- 
cissa  Craig,  was  not  to  be  believed ;  that  the  act,  if  committed 
at  all  by  the  prisoner,  was  with  her  consent,  and  that  her  mo- 
tive in  charging  the  prisoner,  was  to  conceal  her  disgrace. 

The  Court  charged  the  jury,  that  if  Narcissa  was  to  be  be- 
lieved, the  prisoner  was  guilty  ;  and  they  might  enquire 
what  motive  she  had  to  charge  such  an  offence  to  have  been 
committed  on  her  person  by  a  slave,  if  it  were  not  true.  The 
Court  further  charged  the  jury,  that  in  passing  on  the  credi- 


DECEMBER  TERM,  1860.  21 

State  V.  Peter. 

bility  of  the  witness,  they  should  take  into  consideration  the 
length  of  time  between  the  alleged  commission  of  the  oifence 
and  the  accusation  against  the  prisoner ;  that  within  four  or 
five  days  after  the  time  stated  by  the  witness,  the  prisoner 
went  to  the  house  of  the  witness'  father,  and  there  conversed 
familiarly  with  the  father  and  brother  in  her  presence,  and 
that  the  place  where  the  offense  was  alleged  to  have  been  com- 
mitted, was  within  one  or  two  hundred  yards  of  Mrs.  Howard's 
house,  where,  also,  the  wife  of  the  prisoner  resided  ;  that  in 
passing  upon  the  motive  which  the  girl  had  to  make  the  ac- 
cusation, and  as  to  the  allegation  that  she  did  so  to  conceal 
her  shame,  they  would  enquire  what  evidence  there  was  that 
she  would  have  been  disgraced  if  she  had  not  made  the  ac- 
cusation. To  tiiis  charge,  the  prisoner's  counsel  excepted.  He 
also  moved  in  arrest  of  judgment  on  the  same  grounds  relied 
on  in  this  Court. 

Verdict,  guilty.     Judgment  and  appeal  by  the  prisoner. 

Attorney  General^  for  the  State. 
Baker^  for  the  defendant. 

Pearson,  C.  J.  The  fact  that  the  witness,  Narcissa,  did 
not  make  known  or  complain  of  the  outrage  which  had  been 
perpetrated  on  her,  for  two  weeks,  was  presented  to  the  jury 
by  his  Honor,  as  a  circumstance  which  affected  her  credibil- 
ity. This  portion  of  tiie  charge  is  excepted  to,  on  the  ground, 
that  he  ought  to  have  gone  further,  and  told  the  jury,  that 
her  not  making  an  earlier  disclosure,  raised  a  'presumption  of 
falsehood,  to  be  acted  on  by  the  jury  in  the  absence  of  any 
proof  to  rebut  it. 

It  is  not  a  rule  of  law  that  silence,  under  such  circumstan- 
ces, raises  a  presumption  that  the  witness  has  sworn  falsely. 
The  passages  in  the  books,  to  which  reference  was  made  on 
the  ai'gument,  use  the  word  "  presumption,"  not  as  a  rule  of 
law,  but  an  inference  of  fact,  and  treat  of  silence^  as  a  circum- 
stance tending  strongly  to  impeach  the  credibility  of  the  wit- 
ness ;  oa  the  ground  that  a  forcible  violation  of  her  person  so 


22  m  THE  SUPEEME  COUKT. 

State  V.  Peter. 

outrages  the  female  instinct,  that  a  woman,  not  onlj  will 
make  an  ontcry  for  aid  at  the  time,  but  will  instantly,  and 
involuntarily,  after  its  perpetration,  seek  some  one  to  whom 
she  can  make  kiiown  the  injury  and  give  vent  to  her  feelings. 
The  want  of  this  demonstration  of  feeling  or  "involuntary 
outburst,"  is  treated  of  as  a  circumstance  tending  to  show 
C07isent  on  her  part ;  but  it  is  no  where  held  that  this  female 
instinct  is  so  strong  and  unerring  as  to  have  been  made  the 
foundation  of  a  rule  of  law,  as  distinguished  from  a  rule  in 
respect  to  evidence,  and  the  weight  to  which  it  is  entitled  ; 
which  is  a  matter  for  the  jury.  So  that,  although  we  think 
his  Honor  would  have  been  sustained  by  the  authorities  in 
presenting  this  cii'cnmstance  to  the  jury  more  forcibly  than 
he  did,  still  the  omission  is  not  an  error  in  law  which  thi& 
Court  has  the  power  to  review. 

The  motion,  in  arrest  of  judgment,  cannot  be  sustained.  It 
is  based  upon  the  idea  that  the  word  "  person"  in  the  statute, 
in  respect  to  the  crime  of  rape,  Rev.  Code,  chap.  34,  sec.  5, 
does  not  embrace  a  slave,  and  that  tlie  case  of  slaves  is  only 
provided  for  in  the  statute.  Rev.  Code,  chap.  107,  section  44^ 
which  enacts,  "  Any  slave  or  free  negro,  or  free  person  of 
color,  convicted  by  due  course  of  law,  of  an  assault  with  an 
intent  to  commit  a  rape  upon  the  body  of  a  white  female> 
shall  suffer  death."  If  tliis  position  was  granted,  the  conclu- 
sion would  not  follow ;  for  still,  it  would  seem,  that  a  verdict 
finding  a  slave  guilty  of  a  rape  upon  the  body  of  a  white  fe- 
male, would  authoi'ise  a  judgment;  on  the  ground  that  a  rape 
must  of  necessity  include  an  assault  with  an  intent  to  commit 
it ;  the  greater  includes  the  less. 

But  this  Court  is  of  opinion  that  the  word  "-person"  in 
chapter  34,  section  5,  does  embrace  a  slave.  Tlie  word  "  per- 
son" and  the  word  "  man,"  in  their  ordinary  signification, 
include  slaves,  fj'ee  negroes  and  fi-ee  persons  of  color,  as  well 
as  white  men,  and  are  to  be  taken  in  that  sense  in  construing 
statutes,  unless  there  is  something  showing  that  it  was  not  the 
intention  of  the  law-makers  to  use  these  words  in  their  ordina- 
ry signification^  and  that  it  wasnot  intended  to  apply  toslavesw 


DECEMBER  TERM,  ISeO.  23 


State  V.  Peter. 

It  is  said  that  the  intention  not  to  include  slaves,  in  our  statute, 
is  to  be  inferred  from  the  fact,  that  by  the  other,  even  assault 
with  an  intent,  subjects  the  slave  to  the  penalty  of  death,  and 
it  was  a  matter  of  supererogation  to  include  him  also  in  the 
former.  This  argument  proves  too  much;  for  it  excludes 
free  negroes  and  free  persons  of  color,  as  well  as  slaves,  from 
the  operation  of  the  former  statute,  and  it  is  a  7ion  sequitur, 
that  the  latter  statute  makes  the  former  a  matter  of  superero- 
gation. It  is  clear  the  intention  was  to  denounce  the  pen- 
alty of  death  against  any  person,  no  matter  to  which  of  the 
classes  lie  belonged,  who  was  guilty  of  rape,  and  in  respect  to 
the  last  tiirce  classes,  the  intention  was  to  go  further,  and  to 
denonnce  tlic  penalty  of  death  against  all  who  even  commit- 
ted an  assault  on  a  white  female  with  an  intent  to  ravish  her. 

That  it  was  the  intention  to  include  a  slave  by  the  word, 
"person,"  in  the  5th  section,  is  manifest  from  the  sections 
which  immediately  precede  and  follow  it:  section  4:  "  if  any 
person  shall  castrate,  &c. :"  section  7  :  "if  any  person  shall 
burn  the  state-house,  any  court-house,  &c. :  section  8 :  "if 
any  person  shall  enter  any  dwelling-house  with  intent,  efec," 
"  he  shall  suffer  death."  Can  it  be  seriously  contended  that, 
as  our  statute  law  now  stands,  a  slave  may  commit  any  and 
allof  these  deeds,  without  being  guilty  of  a  criminal  offense? 

The  counsel  for  the  prisoner  rested  his  position,  mainly,  on 
the  authority  of  Totn^s  case,  Busbee's  Rep.  214.  It  is  there 
decided  that  the  word,  "person,"  as  used  in  the  act  of  1819, 
Rev.  Code,  chap.  34,  sec.  60,  forbidding  any  person  passing 
counterfeit  bank  bills,  did  not  embrace  a  slave.  The  decision 
is  put  on  the  authority  of  State  v.  Small,  June  Term,  1844. 
That  was  an  indictment  under  the  statute,  Rev.  Statutes,  ch. 
34,  sec.  46,  which  provides  that  "  when  any  man  shall  take  a 
woman  into  his  house,  or  a  looman  a  man,"  "  and  bed  and 
cohabit  together,"  and  it  was  held  that  from  the  subject  mat- 
ter, and  from  the  punishment,  to  wit,  a  fine  not  exceeding 
$200,  it  was  to  be  inferred  that  the  law-makers  did  not  use 
the  words  "  man"  and  "  woman"  in  their  ordinary  sense  ; 
for  if  so,  all  of  our  slaves  could  be  indicted,  as  none  of  thera 


24  m  THE  SUPKEME  COUKT. 

State  V.  Peter. 

are  married  according  to  law,  and  there  is  no  law  by  which 
they  can  be  married,  and  the  idea  of  intending  to  fine  a  slave 
was  absurd  ;  as  slaves  have  no  property. 

Toii'Cs  case  was  governed  by  this  antliorit}'',  and  it  was  con- 
ceived that  the  reasoning  on  which  it  was  decided  applied 
with  full  force,  taken  in  connection  with  the  sections  which 
immediately  precede  and  follow  it,  providing  against  forgery 
and  making  counterfeit  bank  bills,  which  slaves  are  not,  usu- 
ally, able  to  do,  and  in  which  sections  the  same  word,  "per- 
son," is  used.  From  the  two  cases,  this  legal  principle  may 
be  deduced :  Where  a  statute  uses  the  word  "  man"  or  the 
word  "  person"  in  creating  an  offense,  it  embraces  slaves  as 
well  as  white  persons,  and  all  others,  unless  from  the  nature 
of  the  subject  matter  and  the  punishment  imposed,  it  appears 
not  to  have  been  the  intention  to  embrace  slaves.  It  is  true, 
the  Chief  Justice  who  delivered  the  opinion,  in  arguing  the 
question,  uses  the  expression  "in  carrying  out  this  humane 
policy  the  courts,  in  putting  a  construction  upon  penal  statutes, 
have  adopted  the  principle  that  slaves  are  not  embraced  un- 
less mentioned ;  they  are  not  embraced  for  punishment,  but 
they  are  for  protection.  This  principle  was  declared  by  the 
Court  in  the  case  of  Sinall,  June  Term,  1844."  It  is  obvious 
the  learned  Judge  had  in  his  mind  tlie  principle  that,  by  our 
law,  slaves  are  treated  as  "  property,"  civiliter,  but  are  treat- 
ed as  persons  cy'iminaliter,  and  it  was  not  his  intention  to  lay 
down  any  rule  of  construction,  other  than  that  established  by 
the  case  oi  State  v.  S7nall^  and  although  his  words  may  seem 
to  go  further,  the  correct  principle  is  that  stated  above  as  de- 
ducible  from  the  two  cases. 

There  is  no  error. 

Pek  Curiam,  Judgment  affirmed. 


DECEMBER  TERM,  1860.  25 


State  V.  Clara. 


STATE  V.  CLARA,  a  Slave. 

A  judge  cannot  be  required  to  give  instructions  to  the  jury  upon  an  assump- 
tion of  facts,  not  supported  by  evidence. 

Where  there  are  several  possibilities  of  fact,  different  from  the  inference  in- 
tended to  be  drawn  from  the  evidence  offered,  a  Judge  is  not  required  to 
note  one  such  possibility,  and  specifically  bring  it  to  the  attention  of  the 
jury. 

Indictment  for  murder,  tried  before  French,  J.,  at  the  last 
Fall  Term  of  Montgomery  Superior  Court. 

The  defendant  in  tliis  case  was  indicted  M'ith  her  son  Jim, 
a  slave,  as  an  accessory  before  the  fact,  for  killing  their  mas- 
ter, John  E.  Chambers ;  and  they  were  pnt  on  trial  together. 
Jim  was  convicted,  and  as  to  the  defendant,  the  evidence  of 
a  slave,  hy  the  name  of  /Sarah  was,  that  on  the  Snnday  morn- 
ing before  the  murder,  (which  was  on  Wednesday  night,)  the 
prisoner  who  belonged  to  the  deceased  and  usually  cooked 
for  him,  looked  into  a  side-board  drawer  for  bullets,  but  did 
not  find  any;  she  then  told  the  witness,  that  if  she  would  get 
some  bullets,  or  if  she  could  not  get  bullets,  if  she  would  get 
some  caps  and  lead  for  S07n6  j^o'son.,  she  would  be  well  paid 
for  it;  that  witness  asked  the  prisoner  what  she  wanted  with 
these  things — to  which  she  answered,  "never  mind  ;  no  harm." 
That  on  Saturday  night  of  the  same  da}'',  Jim,  the  principal  in 
the  murder,  asked  her  for  the  caps,  and  asked  her  if  his  moth- 
er did  not  tell  her  to  get  the  caps  and  lead  for  him.  The  wit- 
ness replied,  that  Clara  did  not  call  any  names.  Witness  then 
told  Jim  there  were  no  caps  in  the  house ;  to  which  Jim  said, 
"hush  your  lies,  for  he  saw  some  in  Mass.  Roberts  room,  on 
the  mantle-piece."  That  witness  got  the  caps  and  gave  them 
to  Jerry,  another  slave  of  the  deceased,  to  give  to  Jim.  That 
on  Monday  night  following,  she  gave  Jim  a  piece  of  lead. 
That  on  Tuesday  morning  following,  (the  day  before  the  mur- 
der,) the  prisoner  asked  witness  if  she  liad  given  the  things  to 
Jim ;  to  which  she  returned  answer  that  she  had.    It  was  fur- 


26  m  THE  SUPREME  COURT. 

State  V.  Clara. 

ther  in  evidence,  that  on  the  Monday  morning  before  the  mur- 
der, the  prisoner,  Clara,  said  to  a  witness,  that  "she  felt  sorry 
for  her  master — that  he  was  going  to  die  soon,  and  asked  wit- 
ness if  she  did  not  hear  the  lien  crow  in  the  black-jack,  every 
morning  when  he  came  out."  The  witness  said  she  had  not 
heard  it. 

It  was  further  in  evidence  that  after  the  murder  had  been 
committed,  the  prisoner  said  to  the  witness,  if  Jim  did  kill  his 
master,  or  had  it  done,  it  was  no  harm;  for  it  was  life  for  life  ; 
and  she  had  often  heard  that  when  it  was  life  for  life,  it  was 
no  harm.  That  Jim  was  her  child,  and  she  would  not  speak 
against  liitn.  This  witness  asked  her  what  she  wanted  with 
tiie  caps  and  lead  ?  to  which  she  answered,  never  tnind^  she 
hneio. 

There  was  evidence  that  the  deceased  died  of  gun  shot- 
wounds  ;  and  a  phjsician  stated  that  the  wound  was  made  by 
shot  of  tlie  size  of  squirrel  shot. 

There  vras  evidence  that  the  deceased  was  found  with  a  bag 
drawn  over  his  head ;  that  the  bag  was  bloody,  and  that  on 
Sunday  week  after  the  murder,  the  prisoner  was  seen  washing 
tlie  bag. 

The  Court,  after  giving  instructions  applicable  to  the  case  of 
Jim,  to  which  there  were  no  exceptions,  charged  the  jury  that 
if  they  were  satisfied  from  the  testimony,  under  the  rules  laid 
down,  that  Jim  was  guilty  of  the  murder  of  the  deceased,  and 
tliat  the  prisoner  not  being  present  when  the  act  was  done, 
procured,  counselled,  commanded  or  advised  Jim  to  do  it,  she 
would  be  guilty  under  this  indictment;  but,  that  before  they 
could  convict  her,  they  should  be  satisfied  beyond  a  reasona- 
ble doubt,  that  Jim  committed  the  murder ;  and  that  before 
rlie  act  was  done,  Clara  procured,  counselled,  commanded  or 
advised  Jim  to  do  the  act. 

The  counsel  for  the  prisoner  then  asked  the  Court  to  instruct 
the  jury,  that  if  they  believed  Clara's  design  was  to  furnish 
the  amunition  to  kill  meat,  or  for  any  unlawful  purpose  other 
than  the  killing  of  the  deceased,  that  upon  this  evidence  they 
could  not  be  warranted  in  convicting  Clara., 


DECEMBER  TERM,  1860.  2T 


State  V.  Clara. 


The  Court  declined  to  give  the  instruction  prayed  for,  and 
the  counsel  for  the  defendant  excepted. 
Verdict,  guilty.     Judgment  and  appeal. 

Attorney  General,,  for  the  State. 
Blackmer,,  for  the  defendant. 

Manly,  J.  The  instructions  asked  for  were  properly  refus- 
ed. There  was  evidence  to  satisf}'  llie  jury  that  the  homicide 
was  inflicted  by  gun-shot  wounds,  and  by  tlie  hands  of  Jim,, 
tiie  son  of  Clara.  Assuming  tliat  lead  and  gun-caps  were  fur- 
nished by  the  directions  of  Clara,  there  is  a  ])urpose  for  fur- 
nishing them  disclosed  by  the  use  immediately  made  of  such 
articles  by  Jim.  There  was  no  evidence  tliat  he  used  such 
ammunition  for  any  other  purpose,  and  the  instruction  asked 
for,  therefore,  had  no  basis  to  rest  upon  in  tlie  proofs.  It  in- 
volved an  unsupported  assumption  of  fact. 

There  are  possibilities  different  tVom  the  inference  intended 
to  be  drawn,  which  surround  every  evidentiary  fact  in  a  cause  ; 
but  for  a  Judge  to  note  one  such  possibility,  and  specially 
call  it  to  the  attention  of  tlie  jury,  would  be  giving  it  weight 
to  which  it  is  not  entitled,  and  inviting  the  }\\vy  to  draw  from 
the  fields  of  conjecture  the  material  for  making  up  a  verdict. 

The  instruction  asked  for  in  any  sense  whicii  may  be  ascrib- 
ed to  it  was  hypothetical,  and  tlierefore  improper ;  but  if  the 
language  in  which  the  prayer  is  couclied  be  considered,  anoth- 
er objection  to  the  specific  prayer  will  be  apparent.  Interpre- 
ting the  language  used,  viz:  "upon  this  evidence  the  jury 
would  not  be  warranted  in  convicting  Clara;"  to  mean  not 
only  tlie  evidence  assumed,  and  noted  in  the  hypothesis,  but 
also  all  other  tacts  in  the  cause,  bearing  upon  her  guilt,  it  is 
clear  the  instruction  ought  not  to  have  been  given.  There 
was  other  evidence  besides  Chira's  agency  in  pi'ocuring  amu- 
iiition,  and  if  that  liad  been  cliiainated  from  the  pi-oofs  alto- 
gether, tiiere  was  still  evidence  upon  wliich  the  jury  ought  to 
have  been  permitted  to  pass.  Had  the  Judge,  therefoi-e,  given 
the  instruction  asked,  he  would  have  superseded  the  jury  in 


28  IN  THE  SUPREME  COURT. 

Davis  V.  Golston. 

their  proper  province — a  province  made  exclusively  their  own 
by  the  legislation  of  the  State.     Rev.  Code,  ch.  31,  sec.  130. 

Upon  the  whole,  the  instruction  asked  for  ought  not  to  have 
been  given  ;  and  the  entire  record  being  considered  by  us,  we 
are  of  opinion  there  is  no  error  in  the  same. 

Pee  Curiam,  Judgment  affirmed. 


JOHN  Z.  DAVIS  V.  G.  W.  GOLSTON,  Administrator. 

According  to  the  general  understanding  of  the  profession,  where  parties  have 
gone  into  trial  without  a  formal  declaration,  the  plaintiff  is  to  be  taken  to 
have  relied  on  one  suited  to  the  case  made  by  the  proof. 

Where  an  obligation  was  signed  and  sealed  by  one  of  two  partners  and  sign- 
ed, only,  by  the  other,  it  was  Held  to  be  the  deed  of  the  former,  and  the 
simple  contract  only  of  the  other,  and  that  the  latter  might  be  sued  in  as- 
sumpsit alone  on  this  contract. 

This  was  an  action  of  assumpsit,  tried  before  Feench,  J.,  at 
the  last  Fall  Term  of  Harnett  Superior  Court. 

The  plaintifi' declared  on  the  following  promissory  note: 

"  $545.  On  or  before  1st  of  January,  1856,  we,  or  either 
of  us,  promise  to  pay  John  Z.  Davis  or  order,  the  sum  of  five 
hundred  and  forly-five  dollars,  for  the  hire  of  the  following 
negroes,  viz :  Buck,  Samp,  Bockra  and  Charles,  for  the  pre- 
sent year  ;  and  we  furtlier  promise  to  clothe  them  and  furnish 
them  with  shoes,  huts,  and  four  blankets,  and  pay  doctors' 
bills.     This  2d  of  January,  1855. 

R.  C.  Belden,  [seal.'] 
R.  W.  Palmee." 

There  were  also  memoranda  of  counts  for  the  hires  of  slaves, 
and  on  a  special  promise  to  pay,  but  no  formal  declaration 
was  filed  in  the  Court  below. 

The  plaintifi"  having  proved  the  execution  of  the  instrument 


DECEMBER  TERM,  1860.  29 


Davis  V.  Golston. 

declared  on,  the  defendant  offered  evidence  to  show  that  this 
paper-writing  was  signed  by  the  defendant,  Golston's  intes- 
tate, Robert  W.  Palmer,  in  blank,  and  by  him  delivered' to 
Belden,  to  be  used  in  hiring  slaves  for  the  two,  and  that  they 
were  partners.  That  Belden  hired  the  plaintiff's  slaves  and 
filled  up  the  paper-writing,  so  as  to  constitute  the  instrument 
above  set  out ;  his  own  name  having  affixed  to  it  a  seal. 

The  defendant's  counsel  requested  the  Conrt  to  charge  the 
jur3%  that  if  they  believed  from  the  evidence  that  Belden  and 
the  intestate  were  partners,  and  that  the  paper-writing  was 
signed  and  sealed  by  Belden  after  it  was  filled  up,  then,  the 
simple  contract  of  the  intestate  was  merged  in  the  bond  made 
by  Belden,  and  tliat  the  plaintiff  could  not  recover  in  tliis  ac- 
tion. Also,  that  the  defendant  being  sued  on  the  individual 
liability  of  the  intestate,  and  the  proof  being  that  Belden  and 
tlie  intestate  were  partners  and  jointly  liable,  that  the  plaintifi' 
could  not  recover  on  account  of  the  variance. 

The  Court  declined  giving  the  instruction  asked,  and  the 
defendant's  counsel  excepted. 

Verdict  for  the  plaintiff.  Judgment  and  appeal  by  the 
defendant. 

Strange^  for  the  plaintiff. 

Neil  McKay,  for  the  defendant. 

Battlk,  J.  The  84th  section  of  the  31st  chapter  of  the 
Revised  Code,  whicli  was  originally  taken  from  the  act  of 
1797,  (ch.  475,  sec.  2,  of  the  Revised  Code  of  1820,)  declares 
that  "  in  all  cases  of  joint  obligations  or  assumptions  of  co-part- 
ners in  trade  or  otiicrs,  suits  may  be  brought  and  prosecuted 
on  tlie  same  against  all  or  any  number  of  the  persons  making 
such  obligations,  assumptions,  or  agreements."  According, 
then,  to  tlic  express  terms  of  this  enactment,  one  of  two  or 
more  joint  obligors  or  partners  may  be  sued  alone,  and,  of 
course,  the  declaration,  in  the  action,  may  be  so  drawn  as  to 
be  supported  b}^  the  proof,  which  must  necessarily  be  offered. 
In  the  present  case  no  formal  declaration  was  filed,  and,  ac- 


30  m  THE  SUPREME  COURT. 


Davis  V.  Golston. 


cording  to  the  general  understanding  of  the  profession,  the 
plaintiff  is  to  be  taken  to  have  relied  upon  one  suited  to  his 
case  as  established  bj  his  testimony. 

The  objection,  then,  that  there  was  npon  the  trial  a  vari- 
ance between  the  proof  and  tlie  declaration,  is  not  well  found- 
ed. From  the  copy  of  the  instrument,  upon  which  the  suit 
was  brought,  it  appears  that  it  was  signed  and  sealed  by  Bel- 
den,  but  only  signed  by  the  defendant's  intestate,  Palmer. 
There  can  be  no  doubt  that  one  partner  may  bind  himself  by  a 
seal,  if  he  intended  to  do  so,  though  he  cannot  so  bind  the 
firm,  unless  he  has  authority,  under  seal,  for  that  purpose ; 
Fisher  v.  Pender,  7  Jones'  Rep.  483  ;  Elliott  v.  Davis,  ^Bos. 
and  Pul.  338. 

It  is  equally  clear,  we  think,  that  if  an  instrument  be  sign- 
ed and  sealed  by  one  partnei',  and  signed  only  by  another,  it 
will  be  the  deed  of  the  first,  and  the  simple  contract  only  of 
the  second.  See  Green  v.  Thornton,  4  Jones  230.  There 
is  no  more  inconsistency  in  such  a  case,  than  there  is  in  hold- 
ing that  an  executory  agreement  between  two  persons  if  seal- 
ed by  one,  and  only  signed  by  the  other,  Avill  be  the  covenant 
of  the  first  party,  and  the  simple  contract  of  the  second.  The 
latter  case  is  well  settled,  and  upon  a  breach  of  the  agree- 
ment, one  of  the  parties  would  have  to  be  sued  in  an  action 
of  covenant  and  the  otlier  in  assumpsit ;  Yarhrough  v.  Mon- 
day, 3  Dev.  420 ;  Kent  v.  Rohinson,  4  Jones  629  ;  1  Chit, 
PI.  119. 

Pek  Curiam,  Judgment  affirmed-i 


DECEMBER  TERM,  1860.  3J 


Covington    v.  Buie. 


THOMAS  J.  COVINGTON  v.  ARCHIBALD  BUIE,  Executor. 

A  receipt  pigned  by  a  shcrifl'for  a  sum  of  monoy,  "to  be  applied  to  the  pay- 
ment of  a  judgment,"  obtained  against  the  defendant  at  a  previous  term  of  a 
court  of  the  county  in  which  the  defendant  lived,  and  of  which  the  maker 
of  such  receipt  was  slierifF  at  the  time,  is  no  evidence  that  an  execution 
Avas  in  his  hands  when  the  money  was  paid  to  him. 

Tins  was  a  scire  facias  to  revive  a  judgment,  tried  before 
Saunders,  J.,  at  the  last  Term  of  Riclimond  Superior  Court. 

The  material  question  arose  upon  the  plea  of  payment* 
Tlic  defendant's  testatrix  lived  in  Riclimond  county,  and  had 
paid  the  amount  of  the  judgment  in  question,  to  one  William 
Buchanan  then  the  sheriff  of  Richmond  county,  to  whom  an 
execution  would  have  oixlinaril}'  issued,  had  one  been  put  in 
force,  who  gave  Jier  the  following  I'cceipt :  "Received  of 
Christian  J).  Calhouno  three  hundred  dollars  and  thirt_y  cents, 
to  be  ai>plied  to  the  payment  of  a  judgment  in  the  Superior 
Court  of  Richmond,  in  the  suit  of  Thos.  J.  Covington  against 
her,"  dated  March  17th,  1857.  Tiiis  money  was  not  paid  to 
the  plaintijff.  Tliere  was  no  evidence  that  an  execution  had 
issued  to  the  sheriff  returnable  to  the  next  term  after  the  re- 
ceipt, but  the  defendant's  counsel  insisted  that  that  fact  was 
inferrible  from  the  receipt  itself,  and  called  on  the  Court  so  to 
charge  the  jury  ;  but  his  Honor  declined  giving  such  instruc- 
tion, and  instructed  them  that  there  was  no  evidence  before 
them  that  the  sheriff  had  such  an  authority.  The  defendant's 
counsel  excepted. 

Verdict  and  judgment  for  plaintiff,  and  appeal  by  the  de- 
fendant, 

Ashe,  for  the  plaintiff. 
Leitch,  for  the  defendant. 

Battle,  J.  The  plea  of  paj'mcnt  being  a  plea  by  way  of 
confession  and  avoidance,  the  burden  of  tlie  proof,  in  support 
of  it,  was  upon  the  defendant.     He,  accordingly,  for  the  pur- 


32  IN  THE  SUPREME  COURT. 

Crump  V.  McKay. 

pose  of  showing  that  the  judgment  in  question  had  been  paid, 
introduced  the  receipt  of  one  Buclianan,  who  was  the  sheriff 
to  whom  a  writ  of  fieri  facias  would  liave  been  properly  di- 
rected. A  payment  to  him,  however,  availed  nothing,  unless 
at  the  time  when  he  received  the  money,  he  was  authorised 
to  do  so  by  virtue  of  a  Jieri  facias,  commanding  him  to  levy 
it ;  State  v.  Long,  8  Ired.  415  ;  Ellis  v.  Long,  Ibid.  513  ; 
Mills  V.  Allen,  7  Jones,  564.  The  question,  then,  was  nar- 
rowed down  to  tlie  point,  whether  the  receipt  afforded  any 
evidence  that  tlie  sheriff  had  the  writ  of  execution  in  his 
hands  when  the  money  was  paid  to  him.  We  agree  wutli  his 
Honor  in  the  Court  below,  that  it  did  not.  It  does  not  pur- 
port that  the  amount  ])aid  was  in  satisfaction  of  an  execution, 
but  that  he,  the  sheriff,  received  it  "  to  be  applied  to  the  pay- 
ment of  a  judgment,"  &c.  These  terms  exclude  the  idea  that 
he  then  had  any  execution  in  his  hands,  and  shows  that  the 
defendant  had  failed  to  offer  any  testimon}^  which  the  Court 
could  submit  to  the  jury,  as  tending  to  support  his  plea. 

The  testimony  introduced  by  the  plaintiff  being  only  of  a 
rebutting  character,  it  is,  of  course,  unnecessary  to  notice  it 
in  an  enquiry,  whether  any  evidence  had  been  offered  by  the 
defendant  in  support  of  an  issue,  the  affirmative  of  which,  he 
was  bound  to  sustain.  For,  if  he  had  offered  anj^  such  testi- 
mony, the  jury  must  necessaril}^  have  been  called  upon  to'  de- 
cide between  it  and  the  opposing  testimony  of  the  plaintiff. 

Per  Curiam,  Judgment  affirmed. 


SOLOMON  CRUMP  v.   WILLIAM  J.  McKAY. 

In  an  action  against  a  ferryman  for  negligently  carrying  plaintiff's  Avife  across 
his  ferry,  whereby  she  was  injured,  it  is  not  necessary  that  the  wife  should 
be  made  a  party  plaintiff. 


DECEJSkCBER  TERM,  Iseo.L  33: 

Crump  iH  McKay. 

AuTioN  on  the  cask,  tried  before  EitExcii,  J*,,  at  the  last  Fall 
Term  of  Richmond  Superior  Gdurt. 

The  declaration  was  in  case  for  negligcnsc  in  the  defendant's- 
ferryman,  whereby  plaintiff's  wife  and  cliikl  were  thrown  into 
the  Cape  Fear  river  from  the  defendant's  boat,  and  injured. 

The  Court  intimating  an  opinion  that  the  action  could  not 
be  sustained  without  making  the  wife  a  party  plaintiff",  the 
plaintiff  submitted  to  a  nonsuit  and  appealed. 

No  counsel  appeared  for  the  plaintiff"  in  this  Court. , 
Strmuje,  for  the  defendant. 

Pearson,  C.  J.  If: one  slanders  a  married  won>an  or  com- 
mits an  assault  and  battery  upon.lver,  the  action  for  injuring 
her  must  bC'  in  the  name  of  husband  and  wife,  although  in  the 
latter  instance  if  there  be  any>(iamage  besides  the  pain  suf- 
fered by  the  wife,  as  a  loss  of  service,  or  an  inj.iiry  to  clothes, 
or  medical  bills,  the  husband  may  sue  alone  aad  allege  spe- 
cial damage. 

So  if  one  drive  iiis  carriage  so  negligently,  as  to  run  against 
a  married  M'oman^  in  an  action  for  tlie  po^rsonal  injur}'  to  her 
she  is  a  necessary  party,  and  the  husband  cannot  sue  alone: 
without  alleging  special  damage. 

From  the  argument  made  in  this  Court,  we  suppose  his  Hon- 
or intimated  the  opinion  that  the  wife  was  a  necessarj'-  party 
in  tiiis  action,  upon  the  idea  that  it  fell  within  the  principle 
stated  above,  an4  did. not  have  his  attention  :  directed  to  the 
fact  that  tlie  ground  of  the  action  was  not  a  simple  tort,  or 
personal  injury  to  the  wife  and  child  of  the  plaintiff,  but  orig- 
inated in  contract.  The  plaintiff",  either  in  person  or  by  his- 
wife,  as  an  agent,  made  an  agreement  with  the  defendant  by 
which  he  undertook  to  carry  thcwitij  and  child  of  the  plain- 
tiff" across  the  river  with  ordinary  care.  It  is  assumed  by  tlie 
case  that  the  defendant  was  guilty  of  negligence,  by  reason 
of  which  the  wife  and  child  were  thrown  into  the  river.  This 
was  a  breach  of  the  agreement,,  whe-reby  an  action  accrued  to 


34  m  THE  SUPREME  COURT. 

Crump  V.  McKay. 

the  plaintiff,  and,  as  a  matter  of  course,  be  was  entitled  to  re- 
cover damages  to  some  amount. 

The  writ  is  "  trespass  on  the  case,"  and  it  does  not  appear 
b}'  the  record  whether  the  plaintiff  declared  in  contract  or  in 
tort.  He  had  bis  election  to  declare  in  either  form  of 
action.  If  the  declaration  was  on  contract,  of  course  the  wife 
was  not  a  necessary  party ;  and  it  is  equally  clear  if  the  dec- 
laration was  in  tort,  the  wife  was  not  a  necessary  pai'ty.  Thei-e 
was  no  more  reason  for  making  her  a  party  plaintiff,  than  for 
making  the  child  a  plaintiff  in  order  to  enable  the  husband 
and  father  to  recover  the  damages  which  he  had  sustained  by 
reason  of  the  wrongful  breach  of  tlie  contract  on  the  part  of 
the  defendant. 

If  the  defendant  had  undertaken  to  carr_y  a  horse  of  the 
plaintiff's  across  the  river,  and  it  was  drowned  thi-ougii  negli- 
gence, all  the  authorities  show  that  the  plaiutiff  might  have 
sued  either  in  contract  or  in  tort  for  breach  of  the  contract  of 
bailment;  and  the  same  doctrine  applies  to  a  contract  to  car- 
ry persons,  which  is  in  the  nature  of  a  contract  of  bailment. 

The  distinction  between  a  case  of  the  kind  before  us,  and 
those  which  we  presume  his  Honor  bad  in  view,  is  this:  the 
one  is  a  simjylc  tort  without  any  connection  whatever  with  a 
contract,  and  the  other,  although  sued  for  as  a  tort,  arises  ex 
contraot'U^  and  being  based  on  contract,  the  rules  in  regard  to 
the  non-joinder  and  mis-joinder  of  parties  in  actions,  ex  con- 
tractu  are  applied  to  it ;  for  instance,  if  two  purchase  a  horse 
jointly,  and  one  of  them  sue  alone  in  deceit,  the  non-joinder 
of  tlie  other  may  be  taken  advantage  of  by  demurrei",  motion 
in  arrest  of  judgment,  or  writ  of  error  if  the  matter  appears 
in  the  record  ;  if  it  does  not  so  appear,  then  by  non-suit,  be- 
cause of  the  variance,  M'liich  is  the  rule  for  the  non-joinder  of 
parties  plaintiff  in  actions  ex  contractu ^  whereas,  according 
to  the  rule  in  actions  ex  delicto.,  the  non-joinder  could  only  be 
taken  advantage  of  by  plea  in  abatement,  and  in  the  absence 
of  such  plea,  the  plaintiff  recovers  his  aliquot  part  of  the  dam- 
ages. Tliis  is  settled ;  see  Scott  v.  Brown,  3  Jones,  5-il.  On 
the  same  principle  it  is  settled,  if  one  hires  a  horse  to  an  in- 


DECEMBER  TERM,  1860.  35 

Morse  v.  Nixon. 

fant,  and  the  horse  is  injured  by  neglect,  or  hy  being  driven 
too  hard,  the  action  may  l)e  either  in  contract  or  in  tort,  but 
the  party  by  bringing  an  action  in  tort,  cannot  avoid  the  plea 
of  infancy,  which  is  a  bar  to  an  action  on  the  contract ;  for 
the  tort  arises  out  of  a  contract  and  the  rule  in  respect  to 
actions,  ex  contractu,  is  a])plied. 

The  distinction  Ixitwcen  actions  for  slnijiU  torts  and  torts 
arising  ex  contreictn,  or  "  quasi  ex  contractrC  as  they  are  styled 
in  the  Ixioks,  is  so  clear  and  the  reason  for  mnlcing  a  differ- 
ence is  so  obvious,  when  attention  is  called  to  it,  that  it,  seems 
unnecessary  to  elaborate  the  subject. 

Per  Curiam,        Judgment  reversed,  and  venire  de  novo. 


SOLOMON  W.  MORSE  v.  JAMES  M.  NIXON. 

VVhere  a  sow,  having  a  bad  reputation  for  devouring  young  poultry,  (whicli 
was  known  to  her  owner)  was  seen  with  a  duck  in  her  mouth,  and  on  be- 
ing chased  dropped  it,  but  immediately  again  ran  after  it,  and  was  shot  by 
the  owner  of  the  duck  while  in  such  pursuit,  it  wao  Held  that  he  was  justi- 
fied in  so  doing. 

Tins  was  an  action  of  trespass  m  et  armis,  tried  before 
French,  J.,  at  the  last  Fall  Terra  of  Xew  Hanover  Superior 
Court. 

Pleas — General  issue — Justification. 

It  was  in  evidence  that  a  sow,  belonging  to  the  plaintiff, 
was  seen  with  a  duck  in  her  mouth  in  the  public  road  near 
the  residence  of  the  defendant.  The  witness  chased  the  hog 
and  she  dropped  it.  The  hog  immediately  chased  the  duck 
again,  and  while  in  hot  pursuit  the  defendant  shot  her. 

The  defendant  offered  to  prove  several  acts  of  "  chicken 
eating"  by  this  hog,  but  the  testimony  was  ruled  out  by  the 
Court. 

There  was  muck  evidence,  going  to  show,  that  the  hog  was 


36  I-N^  THE  SUPREME  COURT. 

Morse  v.  Nixon. 

well  known  in  the  neighborhood,  and  bore  a  general  reputa- 
tion as  "  a  chicken  eating  hog."  It  was  in  evidence  that  the 
plaintiff,  at  the  time  he  purchased  this  animal,  was  apprised 
of  her  bad  character. 

The  Court  held  that  the  plea  of  justification  was  not  sus- 
tained.    Defendant's  counsel  excepted. 

Verdict  and  judgment  for  plaintiff.     Appeal  by  defendant. 

Bdker^  for  the  plaintiff. 
W.  A.  Wright^  for  the  defendant. 

Battle,  J.  The  facts  of  this  case,  as  now  presented  to  us 
in  the  defendant's  bill  of  exceptions,  are  materially  different 
from  those  which  were  reported  on  a  former  trial.  Then, 
there  was  no  evidence  that  when  the  defendant  shot  the  plain- 
tift^'s  sow,  she  was  in  the  act  of  doing  any  thing  to  injure  him 
or  his  property.  Now,  it  appears  that  she  was  in  hot  pursuit 
of  one  of  the  plaintiff's  fowls  when  he  killed  her.  Then,  noth- 
ing was  proved  as  to  the  plaintiff's  knowledge  of  the  chicken 
eating  propensity  of  his  hog.  Now,  it  seems,  that  when  he 
purchased  her,  he  was  fully  apprised  of  her  fierce  appetite 
for  young  fowls.  Upon  the  facts  as  reported  to  have  been 
proved  on  the  former  trial,  we  held  that  the  defendant  was 
not  justified  in  killing  the  sow  as  a  public  nuisance,  which 
any  person  had  a  right  to  abate.  The  case,  we  think,  is  alto- 
gether different  when  the  sow  is  turned  loose  by  her  owner, 
with  a  full  knowledge  of  her  evil  habits,  and  is  killed  by  tlie 
owner  of  a  fowl  to  save  his  property  from  destruction.  Be- 
sides the  leading  case  of  Wadhurst  v.  Damme^  Cro.  James 
45,  which  was  referred  to  when  this  case  was  before  the  Court 
at  June  Term,  1859,  (see  6  Jones  293,)  there  is  one  reported 
in  9  Johnson,  232,  which  is  very  strong  in  favor  of  the  de- 
fendant's plea  of  justification.  It  is  the  case  of  Leonard  v. 
Wilkins^  in  which  the  plaintiff  sued  the  defendant  for  shoot- 
ing his  dog.  Upon  not  guilty  pleaded,  it  appeared  that  the 
plaintiff's  dog  was  running  with  a  fowl  in  his  mouth,  on  the 
land  of  the  defendant,  when  the  latter  fired  at  and  killed  him. 


DECEMBER  TERM,  1860.  37 

Morse  v.  Nixon. 

It  was  testified  by  several  witnesses  that  the  same  dog  had 
worried  and  injured  their  fowls  and  geese,  and  that  there  was 
an  alarm  in  the  neighborhood  respecting  mad  dogs.  The 
jury  found  a  verdict  against  the  plaintiff,  and  thereupon  he 
was  adjudged  to  pay  the  costs.  The  Court  consisting  of 
Kent,  C.  J.,  and  Thompson,  Spencer,  Van  Ness  and  Yates, 
Judges,  approved  the  verdict  and  judgment  saying:  "The 
verdict  below  was  not  against  law.  The  dog  was  on  the  land 
of  the  defendant  in  the  act  of  destrGying  a  fowl,  and  the  de- 
fendant was  justified  in  killing  him  in  like  manner  as  if  he 
was  chasing  and  killing  sheep,  deer,  calves,  or  other  reclaim- 
•ed  and  useful  animals.  This  principle  has  been  frequently 
and  solemnly  determined,  (Cro.  Jae.  45,  3  Lev.  25).  It  was 
for  the  jury  to  determine  whether  the  killing  was  justified  by 
the  necessity  of  the  case  and  as  requisite  to  preserve  the  fowl; 
and  the  fowl  being  on  the  land  of  the  defendant,  was  enough, 
without  showing  property  in  the  fowl."  The  duck,  in  the  case 
before  us,  being  in  the  public  road,  was  not  necessarily  on  the 
land  of  the  defendant,  but  it  was  near  his  residence,  and  it  may 
be  inferred  that  it  belonged  to  him,  and  if  so,  he  had  a  right  to 
kill  the  hog,  as,  under  like  circumstances,  he  would  have  had  a 
right  to  kill  a  dog,  if  such  killing  were  necessary  to  the  pro- 
tection of  his  fowl.  The  knowledge  which  the  plaintiff  had 
of  the  bad  character  of  his  sow  ought  to  have  induced  him  to 
keep  her  up,  and  the  damage  which  he  sustained  in  conse- 
-quence  of  not  having  done  so,  was  caused  by  his  own  default, 
and  was,  therefore,  damtium  absqiie  iQijuria. 

It  is  to  be  regretted  that  the  verdict  was  not  taken,  subject 
to  the  question  of  law,  so  as  to  have  enabled  us  to  put  an  end, 
by  our  judgment,  to  a  litigation,  the  expense  of  which,  must 
'^e  greatly  disproportioEed  to  the  value  of  the  matter  in  con- 
Jtroversy.  As  it  is,  we  are  obliged  to  reverse  the  judgment 
iind  award  a  venire  de  movo. 

Pek  Cueium:,  Judgment]  reversed. 


38 


IN  THE  SUPEEME  COUKT. 


McLean  v.  Murchison. 


D.  C.  McLEAN,  et  ux,  et  al,  v.  KENNETH  MURCHISON,  et  cd. 

In  tresfiass,  q.  c.  f.,  the  principle  that  where  neither  party  has  possession  of  a 
lappage,  the  superior  title  draws  to  it  the  constructive  possession  and  ex- 
cltjdes  the  constructive  possession  of  the  inferior  title,  may  be  asserted- by 
one  who  is  a  stranger  to  such  superior  title,  against  the  suit  of  one  claiming 
under  tlie  inferior  title. 

This  was  an  action  of  trespass,  q.  c.  f.,  tried  before  EEENCH^ 
J.,  at  the  last  Fall  Term  of  Harnett  Superior  Court. 


The  plaintiffs  claimed  title  to  the  land  in  dispute,  under  a 
grant  to  one  Morrison,  and  by  him  conveyed  to  their  ances- 
tor, so  much  of  their  claim  as  is  necessary  to  the  understand- 
ing of  this  case  is  represented  by  the  lines  A,  B,  C,  D,  E,  F, 
X,  Y,  Z,  1^  2.     They  occupied  that  portion  of  this  area>  which 


DECEMBER  TERM,  1860.  39 

McLean  v.  Murchison. 

was  south-west  of  the  line,  D  2 ;  (see  diagram,)  but  whether 
their  occupation  embraced  the  locus  in  quo  was  a  question. 

The  defendants,  for  the  purpose  of  showing  title  out  of  the 
plaintiff,  offered  in  evidence  a  grant  to  John  Gray  Blount,  of 
older  date  tlian  that  under  which  the  plaintiffs  claimed  ;  which 
covered  a  large  space  of  country  including,  as  they  insisted, 
that  portion  of  plaintiffs'  claim  lying  north  east  of  the  line,  D 
2,  including  tlie  locus  in  quo. 

The  court  charged  the  jury  if  the  plaintiffs  were  not  in  pos- 
session at  the  time  of  the  alleged  trespass,  they  must  rely  upon 
the  constructive  possession  which  arises  from  the  title,  and 
they  had  shown  title ;  and  if  they  had  also  satisfied  them  of 
the  trespass  being  committed  on  the  Morrison  grant,  by  tlie 
defendants,  or  any  of  them  within  three  years  before  the  com- 
mencement of  tlie  suit,  the  plaintiffs  were  entitled  to  recover, 
unless  the  defendants  had  so  located  the  Blount  grant  as  to  cover 
the  land  on  which  the  trespass  had  been  committed,  and  that  in 
this  even  tit  was  not  necessary  that  the  defendants  should  connect 
themselves  with  the  Blount  grant;  thatitwas  sufficient  to  show 
title  out  of  theState,  olderthan  the  grantto  the  plaintiffs,  for  this 
takes  away  their  constructive  possession.  The  Court  further 
instructed  the  jury,  that  if  the  plaintiffs  were  in  actual  pos- 
session, at  the  time  of  the  alleged  trespass,  above  the  line  D, 
2,  and  they  were  satisfied  from  the  evidence  that  the  trespass 
was  committed  by  the  defendants,  or  any  one  of  them,  on  any 
portion  of  the  tract  within  three  3'^ears — it  made  no  difference 
whether  the  Blount  grant  is  so  located  as  to  cover  the  Morri- 
son tract  or  not ;  for  the  reason  that  the  defendants  have  not 
connected  themselves  with  the  Blount  grant.  The  defendants 
counsel  excepted. 

The  defendants  counsel,  asked  the  Court,  to  instruct  the  ju- 
ry that  if  they  should  be  satisfied  that  the  Blount  grant  was 
located  as  contended  by  the  defendants,  and  the  plaintiffs  had 
no  possession  of  the  lappage,  but  that  their  only  ])ossession 
was  below  the  line  D,  2,  and  that  the  tresj)ass,  if  any,  was  upon 
the  land  covered  by  the  Blount  grant,  above  the  line  D,  2, 
that  the  plaintiff'  could  not  recover.     The  Court  declined  giv- 


40  IN  THE  SUPEEME  COURT. 

^IcLean' V.  Murchi9«>n. 

ing  the  instruction' ;' but  told  the  jury  that  if  tlie  Blount  grant 
was  located  as  contended  bj  the  defendants,  and  the  trespass, 
if  any,  was  committed  upon  the  land  covered  by  the  Blount 
grant,  above  the  line  D,  2 ;  then,  if  at  the  time  of  said  trespass, 
the  plaintifls  had  no  possession  above  the' line  D,  2,  upon  the 
lappage,  but  that  their  only,  possession  was  upon  that  part  of 
the  grant  below  the  line  D,  2,  which  would  not  be  upon  the 
lappage,  the  plaintiffs  would  be  entitled  to  their  verdict,  as 
the  defendants  had  not  connected  themselves  with  the  Blount 
grant.  Defendant  excepted.  Yeridictfor  the  plaintiff.  'Judg- 
ement and  appeal  by  the  defendant. 

No  counsel  appeared  for  tiie  plaintiffs  in  this  Court. 
■Strange  and  JSfeill  McKay ^ioY  the  defendants. 

Manly,  J.  We  think  there  was  error  on  the  part  of  the 
court  below  in  refusing  the  instructions  asked  for.  The  action 
of  trespass,  qxtare  cUmsum  f regit,  is  a  possessory  action,  and 
can  only  be  maintained  by  one  who  has  a  possession,  either 
actual  or  constructive ;  and  the  enquiry  therefore,  as  to  who 
had  the  possession  of  the  locus  in  quo  is  material,  and  happens 
in  this  case  to  be  the  turning  point.  In  the  case  of  lapping- 
grants,  when  neither  proprietor  is  in  actual  possession  of  the 
part  common  to  both,  the  constructive  possession  of  that  part 
is  with  the  superior  title.  Actual  possession  {the  pedis positio 
of  the  law)  by  one  who  has  the  inferior  title  outside  of  the 
part  that  is  common,  however  extended  his  claim,  or  long  con- 
tinued as  to  time,  will  not  diminish  the  strength  of  the  supe- 
rior title.  The  reason  is :  such  a  possession  does  not  expose 
the  party  to  the  others  action,  or  afford  him  an  opportunity  of 
asserting  at  law  the  superiority  of  his  title.  The  parties  con- 
sequently remain  unaffected  as  to  their  respective  rights  in  the 
part  common  to  both  the  grants  as  long  as  they  remain  in  this 
condition  ;  and  as  to  possession,  Ae  has  it  by  construction,  who 
has  the  superior  title.  But  if  the  party  with  the  inferior  title, 
take  possession  any  where  in  the  part  that  is  common,  such 
possession  is  held  co-extensive  with  the  entire  part,  and  in  such 


DECEMBER  TERM,  1860.  41 


McLean  v,  Murchison. 


<;ase  the  cortstnictive  possession  which  follows  the  better  title 
is  repelled,  and  the  law  adjudges  hitr.  \\\\o\\&s,i\\Q i^edis 2)0sl- 
■fh,  to  be  in  exclusive  possession  ;  for  the  reason,  that  where- 
-ever  he  may  have  planted  himself  in  the  disputed  part,  he  >s 
alike  exposed  to  the  action  ef  the  adverse  claimant;  and  there- 
fore his  possession  should  be  held,  in  accordance  with  the  gen- 
eral principle,  commensurate  with  liis  claim.  Williams  v. 
.Jjuchaimn,  1  Ired.,  53o;  B(d:er  v.  MGDonald,  2  Jones,  Sii; 
■McMillan  V.  Timier,^7  'J one&,  435.  These  rules  of  law  pre- 
sent and  explain  th-e  apparent  inconsistency,  that  while  in  the 
present  condition  of  the  respectivie  claimants  to  these  grants, 
the  possession  is  construed  to  be  in  the  heirs  of  Blount,  yet  it 
their  grant  had  covered  more  of  the  plaintiff's  land,  i.  e.,  liad 
extended  sonth  of  the  line  D,  2,  so  as  to  embrace  the  actual 
possession  of  the  plaintiff,  the  possession  of  the  whole  lap 
would  have  been  in  the  plaintiffs.  In  the  former  case  the 
plaintiffs  could  not  maintain  this  action,  in  the  latter  they 
could. 

The  principles  here  laid  down  were  fully  recognized  by  his 
Honor  below  in  the  first  part  of  his  instructions  to  the  jury, 
'but  in  the  latter  part,  he  seems  to  hold  them  inapplicable  to 
the  trespass  of  a  stranger  or  mere  wrong-doer.  We  are  not 
aware  of  such  an  exception.  This  action  cannot  be  maintain- 
ed by  one  who  has  neither  the  actual  nor  constructive  posses- 
sion of  the  locus  in  quo,  against  an  intermeddler.  There  must 
be  a  venire  de  novo. 

Per  Curiam,  Judgment  reversed. 


4^  m  THE  SUPREME  COURT. 


Short  V.  Currie. 


Stoic  on  Vie  relation  of  B.  H.  SUORT  el  al  v.  ANGUS  CURRIE  et  al 

A  registered  copy  of  a  clerk's  bond  may  be  read  without  other  proof,  and,  of 
course,  the  original,  when  proved  and  registered  as  the  acts  provide,  may 
also  be  read  thus  without  being  proved  at  the  trial. 

It  seems  at  common  law,  official  bonds  were  not  subjected  to  the  same  tests 
of  strict  proof  and  cross-examination  as  instruments  between  private  per- 
son?. 

This  was  an  action  of  dkbt  on  a  clerk's  bond,  tried  before 
FiiKNcn,  J.,  at  the  last  Fall  Term  of  Moore  Superior  Court. 

Plea :  oreneral  issue. 

Tlic  bond  declared  on,  was  in  the  usual  form  and  had  a 
subscribing  witness  to  it,  who  was  not  present ;  it  was  endorsed 
with  the  eertiticate  of  W.  D.  Dowd,  chairman  of  Moore  coun- 
ty court,  before  which  court  it  was  taken,  that  the  execution 
of  it  had  been  acknowledged  in  open  court,  also  with  the  cer- 
tilicate  of  the  Register  that  it  had  l)ccn  registered  in  his  office. 
To  prove  the  execution  of  the  bond,  the  plaintiff  introduced 
the  clerk  of  the  superior  coui-t,  wlio  stated  that  the  ]iaper- 
writing  in  question  had  been  tiled  in  his  office  as  the  official 
bond  of  the  clerk  of  the  county  court;  that  it  had  been  tiicre 
ke)>t,  and  had  been  taken  from  the  file  for  the  purposes  of  this 
trial.  ir.  J).  iJoi/xl  was  then  introducod,  who  stated  that  at 
the  time  of  the  date  of  the  instrunuMit,  he  was  chairman  of 
the  county  court  of  Moore  county ;  that  the  parties  thereto 
acknowledged  its  execution  before  him  in  open  court,  and 
that  he  endorsed  on  it  the  certificate  above  described,  signed 
by  him  as  chaii-tnaii. 

Upon  this  evidence,  the  plaintiffs  proposed  to  read  the  bond 
to  the  jury,  but  the  defendants'  counsel  objected,  on  the 
ground,  that  there  was  a  subscribing  witness  to  the  jxaper,  and 
that,  tiierofore,  the  proof  was  insufficient. 

The  Court  sustained  the  objection,  and  the  plaintiffs 
counsel  excepted. 

The  plaintiffs'  counsel  then  ofTered  a  registered  copy  of  the 
bond  declared  on,  which  was  also  objected  to  by  the  defend- 


DECEMBER  TERM,  1860.  4S 


Short  i\  Currie. 


ants'  counsel  and  rnled  out  by  the  Conrt.      The   plaintiff's 
again  excepted. 

In  deference  to  the  opinion  of  the  Conrt,  the  plaintiffs  snl> 
niittcd  to  a  nonsuit,  and  a]H>ealed  to  this  Court. 

JVeill  McKay^  for  the  plaintiffs. 

Person  and  McDonald^  for  the  defendants. 

Battle,  J.  "We  are  cleai'lj  of  opinion  tliat  his  Honor,  in 
the  Conrt  below,  erred  in  rejecting  the  testimony  offered  on 
tlie  part  of  the  relators  to  prove  the  execution  of  the  bond 
declared  on.  Jt  being  the  official  bond  of  Alexander  C.  Cur- 
rie, as  clerk  of  the  county  court  of  Moore,  the  rule  of  evi- 
dence, which  requires  the  production  of  the  subscribing  wil?- 
ness  to  prove  the  execution  of  a  private  instrument,  did  not 
apply  to  it.  In  the  case  of  Kello  v.  Mufjet^l  Dev.  and  Bat. 
414,  it  was  held  by  the  Court,  in  relation  to  a  guardian  bond, 
that  "  when  a  suit  is  brought,  its  execution  may  be  denied  by 
a  plea,  for  it  does  not  import  ahsolute  'uerity.  But  it  is  yet  a 
document  partaking  of  a  public  nature,  taken  by  public  au- 
thority, having  a  high  character  of  authenticity,  and  it  re- 
quires not  that  it  should  be  verified  by  the  ordinary  tests  of 
truth  applied  to  merely  private  instruments,  the  obligation  of 
an  oath  and  the  power  of  cross-examining  witnesses,  on  M'hosc 
veracity  the  truth  of  such  instruments  depends.  Confidence 
is  due  to  it,  because  of  the  authority  of  the  Court  by  whom  it 
was  taken,  and  whom  the  State,  in  the  discharge  of  the  paren- 
tal duties  which  it  owes  to  orphans,  has  empowered  to  take 
it."  This  rule  seems  to  1x>  founded  in  reason  and  good  sense, 
and  applies  with  as  much,  if  not  more  force,  to  the  ctfficial 
bonds  of  clerks,  sheriffs  and  other  ])ublic  officers,  as  to  those 
of  guardians.  See  Starkie  on  Evidence,  195.  In  coming  to  the 
conclusion  that  tho  rule  thus  laid  down  in  Kdlo  v.  Magd^  is 
a  sound  one,  and  ought  to  be  followed,  we  have  not  overloctk- 
ed  an  expression  which  fell  from  Tsash,  J.,  in  delivering  the 
opinion  of  the  Court  in  the  case  of  Butler  v.  J>\(i'h<nii^  3  Ire. 
Eq.  589.     It  was  that  "  a  guardian   bond  is  uol  a  lecord,  and 


44  IN  THE  SUPREME  COURT. 

Short  V.  Currie. 

before  it  can  be  used  as  evidence,  in  any  case,  it  must  be 
proved  like  all  other  cases  of  a  similar  kind  by  the  subscrib- 
ing witness,  if  there  be  one."  The  point  decided,  and  the 
onl}^  one  necessar}'^  to  be  decided,  was,  that  the  mere  certiji- 
cate  of  the  clerk,  that  a  certain  paper  was  the  copy  of  a  gnai-- 
dian  bond,  was  no  proof  of  the  fact,  that  it  was  a  guardian 
bond  ;  for,  says  the  Judge,  "  we  know  of  no  law  authorising 
the  clerk  to  certify  a  paper  and  thereby  authenticate  it  under 
his  private  seal."  In  the 'case  now  before  tbe  Court,  there 
Aras  no  question  as  to  the  identity  of  the  obligors,  and  we 
think  the  bond  ought  to  have  been  read  in  evidence  upon  the 
proof  introduced  by  the  relator  without  requiring  the  pro- 
duction of  the  sul)scribing''witness.  That  proof,  however,  was 
not  conclusive,  and  it  was  open  to  the  obligors  to  rebut  it  by 
showing  tliat  wJiat  purported  to  be  their  obligation,  had  ne- 
ver, in  fact,  been  executed  by  them. 

If  there  were  any  doubt  about  the  rule  laid  down  in  Kelh 
V.  Haget^  as  to  the  proof  of  official  bonds  at  common  law, 
there  can  be  none  that  it  has  been  established  by  statutory 
enactments.  By  the  9th  section  of  the  19th  chapter  of  the 
Revised  Code,  taken  from  the  8tli  section  of  the  19th  chapter 
of  the  Revised  Statutes,  it  is  declared  that  "  the  courts  of  pleas 
and  quarter  sessions  shall  cause  all  bonds  taken  before  them 
of  the  clerks  of  their  respective  courts  to  be  acknowledged  or 
proved  in  open  court,  and  endorse  thereon  a  certificate  of 
such  acknowledgment  or  probate,  which  certificate  shall  be 
•  signed  by  the  justice  who 'presides  in  the  courtat  the  time 
such  acknowledgment  or  proof  is  made,"  whic'h  bonds  are 
then  required  to  be  deposited  in  the  office  of  the-clerk  of  the 
superior  court  of  the  respective  counties.  By  the  two  next 
succeeding  sections,  it  is  made  the  duty  of  the  clerks  of  the 
superior  courts  to  have  these  bonds  registered  in  the  register's 
office  of  thoir  respective  counties  ;  and  then  to  keep  the  orig- 
inals in  the  same  manner  as  they  keep  the  records  of  their 
office.  In. connection  with  this,  the  16th  section  of  the  37th 
'Chapter  of  tlie  Revised  Code,  taken  from  the  act  of  1846, 
chap.  68,  sec.  1,  provides  "  that  the  registry  or  diily certified 


DECEMBER  TERM,  1860.  45 


Morrison  v.  McNeill. 


copy  of  the  record  of  any  deed,  power  of  attorney,  or  other 
instrument  required  or  allowed  to  be  registered  or  recorded,  may 
be  given  in  evidence  in  any  court,  and  shall  be  held  to  be  full 
and  sufficient  evidence  of  such  deed,  power  of  attorney,  or  other 
instrument,  although  the  party  offering  the  same  shall  be  en- 
titled to  the  possession  of  the  original,  and  shall  not  account 
for  the  non-production  thereof."  The  general  words  of  this 
section  will,  certainly,  embrace  ofHcial  bonds  which  are  re- 
quired to  be  proved  and  registered,  and  we  have  no  doubt 
that  it  was  intended  to  embrace  them,  because  a  clause  in  the 
9th  section  of  the  19th  chapter  of  the  Revised  Statutes,  which 
said  that  "  on  the  destruction  or  loss  of  the  original  a  certified 
copy  of  the  said  bond  siiall  be  received  in  evidence,"  is  omit- 
ted in  the  corresponding  section  and  chapter  of  the  Revised 
Code.  It  can  hardly  be  supposed  that  such  a  statutory  pro- 
vision would  have  been  omitted  in  one  part  of  the  Code,  unless  it 
was  intended  and  believed  to  be  contained  in  another.  If 
then,  the  certified  copy  of  the  bond,  in  question,  was  sufficient 
evidence  of  its  execution  on  the  trial,  without  other  proof,  of 
course,  the  original,  which  had  been  proved  and  registered  as 
required  by  the  statute,  could  not  be  less  so.  See  /State  v. 
Lewis,  3  Hawks,  410. 

Pkh  Curiam,  Judgment  reversed. 


JOHN  MORRISON  v.  NEILL  McNEILL. 

Where  one  owned  and  possessed  slaves  for  15  years,  and  they  were  run  out  of 
the  State  secretly,  by  the  owner,  into  anotheT-  State,  and  then  taken  in  hand 
by  the  defendant,  who  carried  them  into  a  distant  State  and  sold  them,  and 
received  the  money  about  the  time  the  plaintiff's  judgment  was  obtained 
against  the  owner,  it  was  Held  that  this  was  some  evidence  of  a  secret 
trust,  for  the  use  and  beneQt  of  the  debtor,  to  enable  him  to  defraud  his 
creditors. 


m  IN  THE  SUPREME  COURT. 

Morrison   v.  McNeill. 

This  was  a  scire  facias,  alleging-  a  secret  ti'iist,  &c.,  tried  be- 
fore French,  J.,  at  the  last  Fall  Term  of  Moore  Superior 
Court. 

Several  issues  were  made  up  and  submitted  to  the  jury,  to 
wit :  1.  AYhether  Neill  McXeill  held  any  propert}^,  &c.,  by 
secret  conveyance  from  Dugald  McDugald,  and  in  trust  for 
him,  prior  to  the  filing  of  his,  (defendants,)  answer  in  this 
cause. 

2.  Whether  he  held  any  slaves,  or  any  property,  tfec,  by  se- 
cret clelivery  to  him  by  said  McDugald,  in  order  to  enable  him 
to  avoid  the  payment  of  his  debts. 

The  plaintiff  showed  in  evidence,  a  judgment  and  execution 
in  his  favor,  against  Dugald  McDugald,  at  October  Term, 
1854;  and  a  return  of  nulla  l)ona,  to  April  Term,  1855;  and 
this  sci.fa.,  issued  12th  of  May,  1855,  returnable  to  the  July 
Term  of  Moore  County  Court. 

The  plaintiff"  farther  showed,  in  evidence,  that  a  negro  wo- 
man named  Kancy,  was  in  possession  of  McDugald,  for  10  or 
15  3'ears  ;  that  she  came  to  him  by  marriage  with  the  sister  of 
the  defendant,  and  that  since  the  marriage,  the  woman  had 
had  three  children  that  McDougald  had  possession  of  JNTancy 
and  her  children,  in  the  latter  part  of  the  fall,  in  1854;  that 
he  Avas  largely  indebted,  and  that  he  had  been  sold  out  in 
18-12 ;  that  one  John  McE"eill,  the  nephew  of  the  defendant, 
by  the  direction  of  McDugald,  and  with  the  knowledge  of  the 
defendant,  met  with  these  slaves  on  the  road,  about  9  o'clock 
at  night,  about  half  a  mile  from  the  defendant's  residence,  and 
carried  them  to  the  house  of  one  Pegues,  (defendant's  father- 
in-law)  in  the  State  of  South  Carolina,  where  they  were  de- 
livered to  Pegues ;  that  in  the  following  winter  or  Spring, 
N'eill  McNeill  left  home  to  go  to  the  residence  of  Pegues ; 
and  then  took  the  slaves  from  the  house  of  Pegues,  and  sold 
them  in  the  State  of  Mississippi. 

The  Court  charged  the  jury,  that  there  was  no  evidence  to 
sustain  either  of  the  issues,  and  they  should  find  for  the  de- 
fendant.   Plaintiff's  counsel  excepted. 


DECEMBER  TERM,  1860.  4T 


Slorrison   v.  McNeill. 


Verdict  and  jndgmcnt  for  the  defendant,  and  appeal  by  the 
plaintiff. 

Person  and  Strange,  for  tlie  plaintiff. 

Neill  McKay  and  3lcDonald^  for  the  defendant. 

Manly,  J.  This  Conrt  is  of  opinion  that  there  was  error  in 
the  Court  below  ;  in  holding,  lliei'e  was  no  evidence  to  support 
the  affirmative  of  cither  ol'  tlie  issues. 

It  ma}'  be  assumed  as  a  fact,  in  deciding  the  matter  now 
before  us,  that  in  the  latter  ])art  of  tlie  fall  of  1854,  Dugald 
McDiigald  was  the  owner  of  certain  slaves,  Xancy  and  her 
children.  Having  acquired  them  l)y  his  marriage  he  had  been 
in  continued  possession  of  them  for  fourteen  or  fifteen  years, 
up  to  that  time.  The  phiintiff's  judgment  is  obtained  against 
him  at  October  Term,  1854;  and  in  that  fall  ho  employs  John 
McNeill,  a  nephew  of  his  wife  and  a  nephew  of  defendant 
McNeill,  to  conduct  these  slaves  to  the  house  of  one  regues, 
who  was  a  brother-in-law,  residing  in  the  State  of  South  Car- 
olina. 

The  slaves  are  taken  charge  of  by  John  McXeill,  at  9  o'- 
clock at  night,  about  half  a  mile  from  Xeill  McNeill's  house, 
with  the  knowledge  of  McNeill,  but  under  instructions  from 
McDugald. 

It  is  further  in  evidence,  that  Neill  McNeill  afterwards  took 
the  negroes  from  the  house  of  Pegues — carried  them  to  Mis- 
sippi  and  sold  tliem.  At  what  time  the  latter  occui-rence  took 
place,  does  not  certainly  appear  ;  but  it  is  in  evidence  that 
Neill  McNeill  went  to  the  house  of  Pegues,  in  the  winter  of 
1854-5,  or  spring  of  1855 ;  and  there  is  no  evidence  of  any 
other  visit. 

Taking  the  evidence,  thus  detailed,  together,  it  seems  to  us 
to  afford,  to  say  the  least  of  it,  some  evidence  that  the  slaves 
in  question  were  taken  off  by  Neill  McNeill,  the  defendant, 
to  the  State  of  :^[ississippi,  and  sold  before  the  Fall  Term,  1855, 
of  the  county  court,  when  his  answer  was  put  in  ;  and,  conse- 
quently, between  the  time  of  the  judgment  against  McDugald 


48  IN  THE  SUPREME  COURT. 


White  V.  Cooper. 


and  the  answer  to  the  scire  facia^  lie,  McKeiB,  had  the  pro- 
ceeds of  the  sale  of  the  slaves  in  his  hands,  and  in  contempla- 
tion of  law,  these  proceeds  were  the  property  of  McDiigald, 
the  debtor. 

It  is  not  proper  for  lis  to  say  h&w  much  this  evidence  weighs 
in  establishing  the  affirmative  of  the  issues,  or  erther  of  them  ; 
but,  we  think  it  is  o-f  some  Aveight  and  ought  to  have  been 
submitted  to  the  jury. 

We  decline  discussing  the  case  in  any  other  aspect  or  upon 
any  other  point  of  the  evidence..  The  facts  now  in  proof  are  dif- 
ferent from  those  i)resented  by  the  pleadings,  and  which  were 
assumed  to  be  true  on  a  former  discussion  of  it  in  this  Court, 
(6  Jones,  450)  and  we  content  ourselves  with  simply  declar- 
ino-,  that,  according  to  the  proofs  repoi'ted,  it  was  erroneous  to 
hold  there  was  no  evidence  in.  support  of  the  affirmative  of 
either  of  these  issues.  There  should  be  a  reversal  of  the  judg- 
ment of  nonsuit,  and  a  venire  <th  novo. 

Pek  Cykiam,  Judgifflicnt  reversed. 


THOMAS  WHITE  v.  DAVID  COOPER. 

Where  a  defendant  in  an  action  of  ejectment  has  been  evicted  uMler  a  judg- 
ment and  writ  of  possession,  he  is  not,  estopped,  on  making  an.  actual  entry 
on  the  premises,  from  maintaining  an  action  of  trespass  Q.  C.  F.,  and  on 
showing  title,  he  may  recover  for  trespasses  committed  after  the  termina- 
tion of  the  former  suit. 

Where  one  having  title:  enters  upon  one  who  has  evicted  him  by  a  judgment 
in  ejectment  and  writ  of  possession,  the  former,  by  the  jus  post  liminii, 
notwithstanding  the  presence  of  the  other,  will  be  considered  to  have  been 
in  possession  all  the  time  from  and  after  the  date  of  the  eviction. 

Action  of  trespass  qnare  clausum  fregif,  tried  before 
HowAKD,  J.,  at  the  last  Fall  Term  of  Tyrrell  Superior  Court. 

The  following  statement  of  the  case  was  sent  to  this  Court 
by  his  Honor:  "  The  plaintiff  gave  in  evidence  a  grant  from 


DECEMBER  TERM,  1860.  .t9 

White  V.  Cooper. 

the  State,  and  a  deed  from  the  grantee  to  himself,  and  there 
was  mnch  evidence  as  to  whether  tliese  covered  tlie  locus  in 
quo  or  not.  It  was  then  shown,  that  in  September,  1854,  the 
pUiintiff  being  in  possession  and  cnltivatfng  a  crop,  the  sheriff 
of  Tyrrell  connty,  by  virtne  of  a  writ  of  possession,  dispos- 
sessed the  plaintiff  of  the  locus  in  quo  and  pnt  the  defendant 
in  possession  of  the  same ;  that  tlie  defend'ant  gathered  the 
crop  and  exercised  full  dominion  over  the  premises  ;  that  af- 
ter the  crop  was  gathered,  and  jnst  before  this  suit  was  insti- 
tuted, the  plaintiff  went  upon  the  land  with  a  couple  of  wit- 
nesses, and  in  tlie  yard  of  tlie  pi-emiscs  of  the  defendant,  took 
out  of  his  pocket  a  ])aper  and  said,  "  that  it  was  his  deed  for 
the  laud,  and  that  the  land'  v\-as  his,  and  he  claimed  it  ;"  that 
he  and  the  witnesses  then  left  the  premises,  leaving  the  de- 
fendant still  in  possession  of  the  same.  A  transcript  of  the 
]")roceedings  in  a  former  suit  between  the  same  parties,  inclu- 
ding the  writ  of  possession-,  under  which  the  sheriff  acted,  as 
above  set  forth,  M-as  then  gi\"TCii  in  evidence,  and  the  locus  in 
quo  proved'  to  be  within  the  description  in  the  declaration 
and  wi'it  of  possession. 

The  counsel  for  both  parties  coinciding,  that  the  testimony 
was  satisfactory'  on  all  matters  of  fact,  except,  whether  the 
plaintiff's  patent  and  deed  covered  the  locus  in  quo  or  not, 
and  the  amount  of  damages,  provided  the  plaintiff  was  enti- 
tled to  recover,  and  also  agreeing  that  those  questions  might 
be  submitted  to  the  jury,  and  upon  the  finding,  that  the  Conrt 
might  pass  such  judgment,  as,  upon  a  consideration  of  the  whole 
case,  the  Court  might  deem  right  and  proper.  The  Conrt  re- 
served the  question  of  law,  and  submitted  these  facts  to  the 
jury,  directing  them  in  finding  their  verdict,  to  take  into  con- 
sideration the  admissions  made  by  the  plaintiff  in  the  former 
suit. 

The  jury  found  that  the  gi-ant  and  deed  covered  the  locusin 
quo,  and  assessed  the  damages  to  !^'272. 

Afterwards,  upon  consideration  of  the  whole  case,  the  Court 
being  of  opinion  that  plaintiff  M'as  not  entitled  to  recover,  or- 
dered a  nonsuit  to  be  entered,  and  gave  judgment  against  the 

4 


50  IN"  THE  SUPEEME  COURT. 

White  V.  Cooper. 

plaintiff  for   costs,  from   which  judgment   the   plaintiff  ap- 
pealed. 

Winston,  Jr.,  and  H.  A.  Gilliam,  for  the  plaintiff'. 
Hines,  for  the  defendant. 

Peaeson,  C.  J.  The  statement  of  the  case  is  so  defective, 
that,  but  for  verbal  explanations,  made  at  the  bar,  it  would 
have  been  impossible  for  this  Court  to  conjecture  what  was 
the  question  of  law  reserved  by  the  Court,  upon  which  the 
verdict  was  set  aside  and  a  nonsuit  entered.  We  feel  constrain- 
ed to  call  attention  to  the  fact,  that  owing  to  the  loose  mode 
of  making  up  cases,  there  is  more  difficulty  in  putting  a  con- 
strnction  on  the  case  than  in  deciding  the  points  of  law  ; 
which  greatly  embarrasses  the  Judges  of  this  Court,  and  some 
times,  we  fear,  prevents  justice  from  being  done. 

It  seems,  that  the  jury  found  the  only  facts,  about  which 
the  parties  did  not  agree,  in  favor  of  the  plaintiff,  under  in- 
structions from  his  Honor,  "  to  take  into  consideration  the 
admissions  made  b}^  the  plaintiff  in  the  former  suit."  So,  the 
defendant  had  all  the  benefit  of  these  admissions,  which  he 
had  any  right  to  expect,  and  the  action  of  tlie  Court  could 
not  have  been  predicated  on  them. 

We  are  left,  therefore,  to  infer  that  his  Honor  put  his  deci- 
sion upon  the  supposed  effect  of  the  judgment  in  the  action  of 
ejectment. 

It  is  set  out  in  the  statement  of  the  case :  "  the  locus  in  quo 
was  proved  to  be  within  the  description  in  the  declaration  and 
writ  of  possession  ^  from  which,  by  a  suggestion  at  the  bar, 
an  implication  is  to  be  made,  that  it  was  not  within  the  de- 
scription, in  the  grant,  under  which  the  defendant  claimed  : 
in  other  words,  the  defendant'' s  title  does  not  cover  the  locus  in 
quo,  and  the  question  intended  to  be  presented  is,  does  the 
judgment  in  the  action  of  ejectment,  operate  as  an  estoppel 
and  conclude  the  plaintiff  in  this  action,  in  respect  to  the 
title  ?     Or  can  the  plaintiff  maintain  an  action  of  trespass  Q. 


DECEMBER  TERM,  1860.  51 


White  V.  Cooper. 


C.  F.,  before  lie  has  regained  the  possession  of  his  land  by  an 
action  of  ejectment  and  a  writ  of  possession  ? 

Adopting  this  construction  of  the  case,  which  we  feel  at 
liberty  to  do,  as  we  can  give  it  no  other  meaning,  the  opinion 
of  this  Court  differs  from  that  of  his  Honor. 

The  judgment  in  ejectment  is  conclusive  in  respect  to  the 
titie  for  the  purposes  of  that  action,  and  of  the  action  of  tres- 
pass Q.  C.  F.  for  the  mesne  profits,  when  the  latter  is  nsed 
merely  as  a  continuation  of  the  former,  and  the  plaintiff  con- 
fines his  demand  for  damages  to  the  time  covered  by  the  de- 
mise in  the  declaration  in  ejectment.  If  he  goes  out  of  it,  the 
question  of  title  is  open  on  the  ground,  that  it  lias  only  been 
Considered  by  the  Court  with  a  view  to  deciding  that  the  les- 
sor had  such  a  title  as  enabled  him  to  make  the  demise  for 
the  purpose  of  bringing  the  action  of  ejectment.  This  is  well 
settled,  and,  accordingly,  it  is  very  common  for  a  second  ac- 
tion of  ejectment  to  be  brought.  Indeed,  one  of  the  princi- 
pal benefits  growing  o«t  of  its  substitution  for  real  actions,  is 
the  fact,  that  the  judgment  does  not  operate  as  an  estoppel,  in 
respect  to  the  title,  but  leaves  it  to  be  tried  a  second  or  a  third 
time,  so  as  to  have  it  satisfactorily  settled. 

So  it  is  agreed,  that  if  the  plaintiff  had  brought  ejectment, 
he  could  have  maintained  it,  as  his  title  covers  the  lodus  in 
quo,  and  the  defendant's  does  not,  and  the  judgment  in  the 
first  action  of  ejectment  could  have  no  bearing  on  the  second. 
It  is  also  agreed,  that  had  the  plaintiff  brought  ejectment  and 
recovered,  he  could  then  have  maintained  an  action  of  tres- 
pass Q.  C.  F.  for  mesne  profits  during  the  time  for  which  the 
present  action  is  brought.  The  question,  therefore,  is  narrow- 
ed to  this :  Is  there  any  ground  upon  which  the  question  of 
title  is  concluded,  where  a  defendant,  in  ejectment,  after  be- 
ing evicted  by  a  writ  of  possession,  makes  an  actual  entry  and 
brings  trespass  Q.  C.  F.,  that  would  not  apply  to  an  action  of 
ejectment  brought  by  him  ? 

We  have  seen  that  the  question  of  title  is  hot  concluded  in 
the  second  action  of  ejectment,  for  the  reason  that  the  judg- 
ment in  the  first  action  only  decides,  that  the  lessor  had  such 


62  m  THE  SUPKEME  COUET. 

White  V.  Cooper. 

a  title  as  enabled  him  to  make  the  demise  for  the  purpose  of 
that  action.  This  reason  applies  with  equal  force  to  the  ac- 
tion of  trespass  quare  clausuin  f regit,  and  excludes  the  idea 
that  the  question  of  title,  outside  of  the  first  action,  is  conclu- 
ded in  any  other  action. 

Accordingly,  it  is  settled,  that  if  the  title  of  the  lessee  does 
not  reach  back  to  the  date  of  the  demise,  the  objection  is  fa- 
tal ;  but  it  makes  no  difference  whether  the  lease  is  for  five, 
ten,  or  twenty  years,  because,  the  Court  does  not  pass  on  the 
title  beyond  the  termination  of  the  action  ;  BuUer's  N.  P.  106; 
Athyiis  V.  Ilorcle^  1  Burr,  114;  where  Lord  Mansfield  says: 
"The  recovery  in  ejectment  is  a  recovery  of  the  possession, 
without  prejudice  to  right,  as  it  may  afterwards  appear,  even 
between  the  same  parties.  lie  who  enters  under  it,  is  only 
possessed  according  to  his  right.  If  he  has  a  freehold,  he  is 
in  as  a  freeholder.  If  he  has  no  title,  he  is  in  as  a  trespasser. 
If  he  had  no  right  to  the  possession,  then  he  takes  only  a  naked 
possession." 

It  may  be  conceded,  that  if  the  plaintiff  in  ejectment  after 
judgment  follows  it  up  by  an  action  for  the  mesne  profits  and 
recovers,  the  defendant  cannot  afterwards  recover  back  such 
profits,  although,  in  a  second  action  of  ejectment,  he  has  suc- 
ceeded in  establishing  title  in  himself.  So,  it  may  be  conce- 
ded that  for  the  entry,  under  the  writ  of  possession,  the 
plaintiff  in  the  first  action  is  protected  by  the  judgment  and 
writ,  although  it  turns  out  the  land  did  not  belong  to  him. 
This  is  on  the  ground  that  the  judgment  in  ejectment,  con- 
cludes the  title  for  the  purposes  of  that  action  ;  hence,  we  find 
many  writs  of  error  to  reverse  a  judgment  in  ejectment,  and 
it  is  held  that  the  pendency  of  a  writ  of  error  operates  as  a 
supersedeas  to  the  action  for  mesne  profits ;  Demford  v. 
Ellys,  12  Mod.  138,  and  it  would  seem,  if  the  judgment  in 
ejectment  did  not  conclude  the  question  as  to  mesne  profits 
and  the  entry  under  the  writ  of  possession,  every  purpose 
would  be  answered  by  a  second  action  of  ejectment,  and  there 
could  be  no  motive  for  bringing  a  writ  of  error. 

There  is  no  intimation  in  the  books,  and  no  reason  can  be 


DECEMBER  TERM,  1860.  53 

Pridgen   v.    Bannerman. 

given  for  canning  the  effect  of  a  judgment  in  ejectment  be- 
yond the  point  here  conceded.  After  the  termination  of  the 
action  and  the  execution  of  the  writ  of  possession,  if  he  have 
no  title,  in  the  words  of  Lord  Mansfield,  "  he"  (the  lessor) 
"  is  in  as  a  naked  trespasser,"  and,  of  course,  may  be  sued  as 
such,  and  made  to  pay  damages,  to  the  real  owner,  for  every 
act  done  thereafter. 

Having  disposed  of  the  estoppel ;  it  does  not  admit  of  a 
question,  that  the  real  owner  may  maintain  an  action  of  trespass, 
if  he  regains  the  possession  without  bringing  ejectment.  The 
plaintiff,  in  this  case,  by  making  an  actual  entry  on  the  land 
by  force  of  his  title,  was  then  in  possession,  notwithstanding 
the  presence  of  the  defendant;  for  it  is  settled,  that  when  two 
are  on  the  land,  the  law  adjudges  the  possession  to  be  in  the 
party  who  has  the  title;  and  the  plaintiff  being  thus  in  possession 
by  the  doctrine  of  relation  or  the  jus  2)0f<tUmin{i  is  considered 
by  law,  as  having  been  in  possession  all  the  time  from  and 
after  the  date  of  the  eviction,  and  may  maintain  trepass  Q.  C. 
F.  with  a  eontmitando,  and  recover  damages  for  the  trespass- 
es done  during  that  period ;  Bynum  v.  Carter^  4  Ire.  310. 

There  is  error.  Judgment  reversed,  and  judgment  in  this 
Court  for  the  plaintiff  according  to  the  verdict. 

Pee  Cueiam,  Judgment  below  reversed. 


HANNAH  S.  PRIDGEN  et  al,  v.  GEORGE  W.  BANNERMAN  et  al 

Where  a  fact,  proposed  to  be  proved  by  a  party,  is  admitted  by  the  opposite 
side,  it  is  not  error  in  the  Oourt  to  refuse  to  let  it  be  proved  by  witnesses. 

On  an  issue  before  tlie  Court,  there  is  no  error  in  refusing  to  give  particular 
weight  to  a  rebutting  fact,  and  where  the  Judge  thought  the  testimony 
preponderating  against  said  fact,  it  was  not  error  to  say  of  such  fact,  that  it 
was  immaterial. 

Whether  there  was  a  necessity  for  a  public  road,  between  given  termini,  is  a 
matter  which  cannot  be  re-examined  in  this  Court. 


64  -    IN  THE  SUFKEME  COUKT. 

Pridgen   v.   Bannerman. 

Petition  for  a  public  road,  heard  before  Fkench,  J.,  at  the 
last  Fall  Term  of  Bladen  Superior  Court. 

The  praj^er  of  the  petition  was  for  a  public  road,  running 
from  Mount  Zion  Church,  in  Bladen  county,  to  Lake  creek,  in 
the  same  count3\  as  near  as  practicable  to  the  line  of  an  old 
road,  now  closed ;  said  road  to  be  seven  miles  long.  It  was 
in  evidence,  that  a  road  had  lately  been  established  by  the 
Ootmty  Court  of  Bladen  ;  between  the  termini  of  tlie  propos- 
ed road,  running  most  of  the  way  about  half  a  mile  from  the 
line  of  the  old  road  ;  and  the  counsel  for  the  petitioners  offer- 
ed to  prove  by  the  records  of  the  county  court,  that  such  road 
was  not  laid  out  according  to  law. 

The  Court  refused  to  hear  such  testimony,  saying  it  was 
immaterial ;  that  the  pleadings  did  not  raise  that  point.  Af- 
ter the  testimony  was  all  in,  the  petitioners  offered  again  to 
prove  that  the  road,  now  used  as  a  public  road  between  the 
termini  of  the  road  prayed  for,  was  not  laid  out  according  to 
law.  The  defendant  admitted  the  fact  alleged,  but  the  Court 
said  it  was  immaterial,  and  if  it  were  proven,  it  would  not 
affect  his  decision,  as  he  did  not  think  the  road  prayed  for> 
necessary.     Judgment  against  petitioners,  and  appeal  by  them. 

Baker^  for  the  plaintiffs. 

M.  B.  Smith,  for  the  defendants. 

Battle,  J.  "We  are  unable  to  discover  any  error  in  the 
record  of  M-hich  the  plaintiffs  can  complain.  The  fact,  which 
they  offered  to  prove  by  testimonj^,  was  admitted  by  the  de- 
fendants to  be  true,  and  the  remark  made  by  the  Judge,  that 
it  was  immaterial^  meant,  in  the  connection  in  which  he  used 
it,  that  it  was  immatei'ial  to  the  decision  of  the  cause  in  the 
view  which  he  took  of  it.  A  road  was  in  use  by  the  public, 
and  whether  it  had  been  originally  laid  out  according  to  law 
or  not,  his  Honor  thought  that  another  public  mad  running 
60  near  the  same  line,  could  not  be  necessary.  The  plaintiffs, 
then,  had  the  benefit  of  his  Honor's  judgment  upon  the  weight 
to  be  allowed  to  the  fact,  that  the  road,  already  in  public  lase. 


DECEMBER  TERM,  1860.  55 

Hanna  v.  Ingram. 

had  Dot  been  laid  out  according  to  law.  Admitting  the  fact, 
he  decided  that  he  could  not  change  his  opinion,  because  he 
thought  the  road,  proposed  by  the  plaiutiifs,  was  unnecessary 
any  how.  It  is  conceded  that  the  question  of  the  necessity 
for  the  new  road  was  one,  tlie  decision  of  which,  in  the  Supe- 
rior Court,  is  not  the  subject  of  re-examination  in  this  Court. 

Per  Curiam,  Judgment  affirmed. 


JAMES  HANNA  v.  JOHN  N.  INGRAM. 

Where  a  writ  in  slander  was  issued,  returnable  to  a  term  of  the  Court,  and 
no  alias  issued  from  such  return  term,  but  a  writ  issued  from  the  next  term 
thereafter,  it  was  Held  that  the  latter  writ  was  the  commencement  of  the 
suit,  and  the  limitation  to  the  action  must  be  determined  accordingly. 

Action  for  slander,  tried  befoi'e  French,  J.,  at  the  Fall 
Term,  18G0,  of  Anson  Superior  Court. 

It  appears  on  the  trial  that  a  writ  issued  on  the day  of 

February,  1857,  returnable  to  Marcli  Term  of  that  year; 
which  was  returned,  "not  found"  ;  and  that  no  writ  issued  to 
the  next  ensuing  Term  thereafter,  but  that  one  issued,  retur- 
nable to  the  second  Term,  which  was  March  Term,  1858,  which 
was  marked  as  an  alias,  and  pursued  the  language  peculiar  to 
that  writ. 

The  Court  intimated  an  opinion  that  the  latter  writ  was  the 
commencement  of  the  suit ;  and  as  the  words  were  spoken 
more  than  six  months  prior  to  the  date  of  its  issuing,  the  ac- 
tion was  barred.  In  deference  to  this  intimation,  the  plaintiff 
took  a  nonsuit  and  appealed. 

McCorhle,  for  the  plaintiff. 

H.  II.  BatU^^  for  the  defendant. 


56  m  THE  SUPKEME  COURT. 

Adams  v.  Clark. 

Manly,  J.  The  power  to  bring  an  action  for  words  is  lim- 
ited by  the  Revised  Code,  ch.  65,  sec.  3,  to  six  months  after 
the  speaking  of  them  ;  and  the  question  presented  here  is : 
At  what  time  was  this  action  commenced  ?  When  the  first  writ 
was  issued  ?     Or  when  the  last  ? 

We  concur  with  his  Honor  below,  that  it  was  at  the  issuing 
of  the  last  writ — the  one  from  the  Fall  Term,  1857,  to  the  fol- 
lowing spring.  This  latter,  although  denominated  an  alicos, 
does  not  connect  itself  with  the  other,  so  as  to  make  one  con- 
tinuous suit,  a  term  having  intervened  from  which  no  process 
was  issued.  In  the  case  of  FuWhrirjlit  v.  Tritt^  2  Dev.  and 
Bat.  491,  it  was  held  that  such  a  failure  under  precisely  simi- 
lar circumstances,  worked  a  discontinuance  of  the  suit  and  the 
issuing  of  a  writ,  purporting  to  be  an  alias^  at  the  subsequent 
term,  was  the  beginning  of  a  new  suit.  The  case  of  Full- 
hright  v.  Tritt  is  in  point,  and  is  satisfactory  to  us.  It  decides 
the  cause  before  us  in  accordance  with  the  opinion  of  the 
Judge  below,  and  his  judgment  should,  therefore,  be  affirmed. 

Pee  Curiam,  Judgment  affirmed. 


JOHN  Q.  ADAMS  et  al  v.  HENRY  S.  CLAEK. 

That  a  holograph  script  was  seen  among  the  valuable  papers  and  effects  of 
the  decedent  eight  months  before  his  death,  is  no  evidence  that  it  was  found 
there  at  or  after  his  death. 

Issue  of  devisavit  vel  non,  tried  before  his  Honor,  Judge 
HowAED,  at  the  Fall  Term,  1860,  of  Beaufort  Superior  Court. 

The  propounders  proved  by  one  Martin  Manning,  that  he 
was  working  for  the  decedent,  Charles  A.  Clark,  from  about 
the  last  of  December,  1856,  to  the  last  of  February,  1857  ; 
that  said  Clark  was  unmarried  and  without  children ;  that  on 
an  evening  in  February,  1857,  after  supper,  in  the  house  of 


DECEMBER  TERM,  1860.  57 


Adams  v.  Clark. 


the  said  Clark,  he  was  engaged  in  writing  at  a  desk  ;  that  he 
got  up,  and  going  to  a  trunk,  opened  it  and  took  out  a  small 
tin  trunk,  from  which  he  took  a  red  pocket-book,  and  from  out 
of  that  he  took  the  paper-writing  now  propounded  as  a  holo- 
graph will;  that  he  read  it  to  the  witness,  and  told  him  to 
take  notice  of  it  as  he  might  see  it  again ;  that  he  then  put  it 
back  in  the  pocket-book,  and  r^aising  the  lid  of  the  desk, 
placed  the  pocket-book  in  the  desk ;  that  he  never  saw  the 
paper  afterwards,  until  shortly  before  the  trial  in  the  County 
Court;  that  the  decedent  usually  carried  bank  bills  in  that 
poclcet-book,  and  he  several  times  took  money  out  of  it  to  pay 
witness;  that  no  white  person  lived,  during  this  time,  with 
the  decedent,  except  the  witness  ;  that  Clark  died  in  Novem- 
ber, 1857.  There  w^is  other  evidence,  but  none  as  to  the  point 
on  which  the  case  is  decided  in  this  Court.  The  counsel  for 
the  caveators  contended  tliat  there  was  no  evidence  that  the 
script  was  found  among  the  valuable  papers  and  effects  of  the 
decedent,  and  asked  the  Court  so  to  instruct  the  jury  ;  and  his 
Honor  being  of  that  opinion,  so  instructed  the  jury.  Plain- 
tiffs' counsel  excepted. 

Verdict  for  caveators.  Judgment  and  appeal  by  the  pro- 
pounders. 

Hodmmid  and  Warren,  for  the  propounders. 
McRae  and  Shaio,  for  the  caveators. 

Battle,  J.  The  119th  chapter  of  the  Revised  Code,  sec- 
tion 1,  requires  for  the  proof  of  a  holograph  will,  that  it  "  be 
found  among  the  valuable  papers  and  effects"  of  the  deceas- 
ed, or  that  "it  shall  have  been  lodged  in  the  hands"  of 
some  person  for  safe  keeping,  &c.  In  the  present  case,  it  is 
not  pretended  that  the  script  was  lodged  in  the  hands  of  any 
person  for  safe  keeping,  but  it  is  sought  to  be  established  as 
the  will  of  the  deceased,  upon  the  ground,  that  it  was  found 
among  his  valuable  papers  and  effects.  Found  when  ?  Cer- 
tainly at  or  after  the  death  of  the  alledged  testator.  The  pa- 
X)er  could  not  become  a  will  until  the  death   of  the  alleged 


58  IN  THE  SUPKEME  COURT. 

Koonce  v.  Perry. 

testator,  and  to  show  that  he  intended  it  to  operate  as  his  will, 
it  must  be  proved  that  it  was  found  lying  among  his  valuable 
papers  and  effects,  for,  from  that  circumstance,  it  is  to  be  infer- 
red that  he  regarded  and  had  kept  the  script  as  a  valuable  paper 
also.  The  only  testimony  oflered  by  the  propounders,  upon 
this  all-important  point,  was  that  of  a  witness,  who  had  seen 
the  deceased  put  the  script  in  a  red  pocket-book  about  eight 
months  before  his  death.  What  become  of  it  afterwards,  does 
not  appear,  eitlier  from  his  testimony  or  that  of  any  other  per- 
son, nor  does  it  appear  where  it  was  found,  at  or  after  the  death 
of  the  deceased.  It  would,  to  a  great  extent,  defeat  the  pro- 
tection thrown  around  holograph  wills,  if  the  fact,  that  a 
script  was  seen  among  tlie  valuable  papers  and  effects  of  the 
deceased  several  months  hefore  his  deaths  could  be  submitted 
to  a  jury  as  any  evidence  that  it  was  found  there,  at  or  after 
his  death. 

Thinking  that  there  was  no  evidence  in  support  of  that  eS' 
sential  point,  it  was  unnecessary  for  us  to  enquire,  whether 
the  red  pocket-book,  spoken  of  by  the  witnesses,  was  a  place 
of  deposit  for  the  valuable  papers  and  effects  of  the  deceased^ 

Pek  Cueiam,  Judgment  aflSrmed. 


SIMON  E.  KOONCE  v.  GEORGE  W.  PERRY. 

Where  a  bailrtient  is  once  established,  a  mere  possession  under  a  claim  of  title 
with  the  use  of  the  property  as  his  own,  unaccompanied  by  an  act  upon 
the  part  of  the  bailee,  changing  the  nature  of  his  holding,  will  not  set  the 
statute  of  limitations  in  motion. 

Action  of  trover,  tried  before  Bailey,  J.,  at  the  last  Supe- 
rior Court  of  Jones  County. 

The  declaration  was  for  the  conversion  of  two  slaves  who 
had  belonged  to  one  Hargett,  who  for  the  recited  considera- 


DECEMBER  TEEM,  1860.  5» 


Koonce  v.  Perry. 


tjon  of  $ -in  the  year  1835,  conveyed  them  to  the  phiintiff, 

who  was  the  son  of  the  defendant's  intestate.  At  the  time  of 
this  conveyance,  plaintiff  was  under  the  age  of  twenty  one,  and 
for  a  portion  of  the  time,  between  1835  and  1850,  lived  with  his 
father.  It  did  not  appear  how  much  of  this  time  he  lived 
with  his  father,  but  he  was  there  in  1850.  In  that  year  (1850) 
the  father  of  the  plaintitf,  wishing  to  exchange  one  of  these 
slaves  for  one  belonging  to  one  Hill,  made  a  proposal  to  the 
latter  to  do  so.  Hill  objected  to  the  exchange,  on  the  ground 
that  the  slave,  which  intestate  offered  to  let  him  have,  was  one 
of  the  Ilargctt  negroes,  and  that  he  could  not  make  title  to 
him,  because  he  had  been  conveyed  to  his  son,  the  plaintiff. 
To  this,  the  father  replied,  that  he  was  aware  that  the  right  of 
these  hcgroos  was  in  his  son,  but  ho  would  get  him  to  make 
the  bill  of  sale.  The  exchange  was  made,  and  the  son  execu- 
ted the  bill  of  sale  for  the  slave,  which  the  father  subscribed 
as  a  witness,  and  afterwards  proved  it  in  Court.  The  Hargett 
negroes,  as  they  were  called,  continued  in  the  possession  of 
the  fiither,  from  the  date  of  the  conveyance  to  the  son,  in 
1835,  till  his  death,  which  took  place  in  1858,  during  all  which 
time,  he,  (the  father,)  exercised  the  same  control  over  them  as 
he  did  over  his  other  property,  and  upon  one  or  two  occasions 
said,  that  ihey  belonged  to  him. 

The  defendant,  as  administrator  of  the  father,  took  posses- 
sion of  these  slaves,  claiming  them  as  the  estate  of  his  intes- 
tate. The  plaintiff  made  a  demand,  and  on  refusal,,  this  suit 
was  brought.  The  defendant  relied  on  the  lapse  of  time  as 
making  his  intestate  a  good  title. 

The  Court  charged  the  jury,  that  if,  when  tlie  father  took 
possession  of  the  negroes,  he  took  them  as  his  own,  the  plain- 
tiff could  not  recover,  because  of  the  length  of  possession  ; 
but,  that  if  he  received  them  as  the  property  of  his  son,  it 
constituted  a  bailment  between  him  and  his  son  ;  and  the  fact 
that  he  used  them  as  his  own,  and  claimed  them  as  his  own, 
did  not  destroy  that  bailment;  and  that  the  plaintiff  would,  in 
that  case,  be  entitled  to  recover.     Defendant's  counsel  except- 


60  IN  THE  SUPREME  COURT. 

Koonce  v.  Peny. 

ed.     Yerdict  and  judgment  for  the   plaintiff,  and   appeal   by 
the  defendant. 

Ilaughton,  for  the  plaintiff. 

J.  W.  Bryan  and  Green^  for  the  defendant. 

Manly,  J.  There  was  no  error  on  the  trial  of  this  case  be- 
low, of  which  the  appellant  can  justly  complain.  Of  the  in- 
struction given  in  the  alternative,  that  the  father  took  posses- 
sion of  the  negroes  as  his  own,  the  appellee  might  have  com- 
plained, for  as  the  case  is  presented  to  us,  there  was  no  evi- 
dence upon  which  such  instruction  could  have  been  based. 

The  slaves  went  into  the  possession  of  the  defendant's  intes- 
tate upon  the  execution  of  a  deed,  to  his  son,  then  a  minor  ; 
and  living  with  him,  and  the  taking  and  holding  of  the  same, 
should  be  presumed  to  be  in  conformity  with  the  right.  In 
its  origin,  therefore,  the  possession  of  the  intestate  was  a  clear 
bailment,  without  evidence  of  any  kind  to  the  contrary.  The 
Court  below  was  entirely  correct  in  the  instruction  ;  that  if 
possession  were  accepted,  in  the  beginning,  in  the  right  of 
the  son,  it  was  a  bailment  which  could  not  be  terminated  or 
converted  into  an  adverse  holding,  by  the  fact  proved,  that 
intestate,  through  a  number  of  years,  had  used  them  as  his 
own  and  called  them  his  own ;  something  more  is  necessary 
to  convert  a  holding  of  the  kind  supposed,  into  an  adverse 
one.  It  does  not  appear,  indeed,  that  the  calling  them  his 
own  was  in  the  presence  of,  or  that  it  came  to  the  knowledge 
of  the  son ;  and  the  use  of  them  as  his  own  was  not  inconsis- 
tent with  a  bailment.  Therefore,  there  was  nothing  to  put  the 
plaintiff  on  his  guard,  and  excite  him  to  demand  a  recogni- 
tion of  his  rights.  The  only  occasion  when  a  question  as  to 
their  respective  rights  in  this  property  was  made,  was  upon 
the  exchange  of  one  of  the  slaves  in  1850,  when,  instead  of 
setting  up  a  claim  to  them,  the  right  of  property  in  the  plain- 
tiff was  distinctly  recognized  by  the  intestate. 

In  the  case  of  Martin  y-  Harden,  2  Dev.  and  Bat.  504,  it 
was  held  by  this  Court  that  a  demand  by  the  bailor  and  refu- 


DECEMBER  TERM,  1860.  61 

Koonce  v.  Perry. 

sal  by  the  bailee,  wonld  operate  to  change  the  nature  of  the 
possession,  and  convert  it  into  an  adverse  one.  And  in  Pow- 
ell V.  Powell,  1  Dev.  and  Bat.  Eq.  379,  where  there  had  been 
a  parol  gift  of  slaves,  the  death  of  the  donee,  a  division  among 
the  next  of  kin,  and  taking  possession  of  the  slaves  in  ques- 
tion, b}'  one  as  his  share,  it  was  lield  that  such  possession,  so 
taken,  was  adverse  to  the  original  donor;  but  in  the  case  of 
Hill  V.  Ilmjhes,  1  Dev,  and  Bat.  336,  although  the  bailee  not 
only  claimed  and  used  the  slaves  as  his  own,  but  conveyed 
them  by  a  deed  of  trust  for  the  payment  of  his  debts,  yet,  as 
the  trustee  did  not  take  possession,  but  the  bailee  kept  it  as 
before,  it  was  held  tlie  bailment  was  not  determined.  And 
so  in  the  case  of  Collier  v.  I*oe,  1  Dev.  Eq.  55  ;  Avhere  a  slave 
was  loaned  in  ISO-i,  the  death  of  the  lender  in  1807,  an  open 
claim  during  the  life-time  of  the  lender,  by  the  defendant  to 
hold  them  as  his  own  right,  and  a  continued  possession  under 
that  claim  until  1824;  it  was  held,  the  statute  of  limitations 
did  not  protect  the  defendant. 

The  principles  to  be  deduced  from  these  cases  arc,  that 
while  an  abortive  attempt  to  regain  possession,  as  by  demand 
and  refusal,  or  some  act  by  the  bailee,  changing  the  nature  of 
liis  profession,  as  in  the  case  of  Poioell  v.  Powell,  will  put  the 
statute  of  limitations  in  action ;  yet,  no  length  of  possession 
under  claim  of  title  and  use  of  the  property  as  one's  own,  will. 
In  the  case  of  Gree7i  v.  Harris,  3  Ired.  210 ;  it  M'as  held  by 
this  Court,  that  where  it  was  manifest  there  was  no  purpose  or 
wish,  on  the  part  of  the  bailor,  then  to  resume  possession,  a 
mere  naked  declaration  of  riglit  in  liimself  by  the  bailee,  al- 
htough  made  in  the  presence  of  the  bailor,  unaccompanied  by 
any  act  ui)on  the  part  of  the  former,  changing  the  possession, 
would  not  set  the  statute  of  limitations  into  immediate  action. 
Tliis  latter  case  is  believed,  indeed,  to  be  fully  sustained  by 
the  principle  decided  in  the  case  of  Hill  v.  Hughes.  Some- 
thing more  tlian  a  mere  claim  of  right,  made  known  to  the 
adverse  party,  is  necessary. 

His  Honor,  therefore,  in  the  instruction  given  in  tlie  case 
before  us,  was  entirely  within  the  principles  of  cases  decided 


62  m  THE  SUPREME  COURT. 

Willis  i>.  Melvin. 

in  this  Court.  For  if  the  construction  be  put  upon  it,  that  iil- 
testate  declared  the  slaves  belonged  to  him  in  the  presence  ot' 
plaintiff,  which  is  not  the  proper  construction,  yet  the  direc- 
tions to  the  jury  would  be  justified  by  the  cases  of  Mill  Vs 
Hughes  and  Gi'een  v.  Harris. 

Upon  the  facts  of  the  case  before  us  novV-^  we  hold  that  a 
bailment,  established  as  it  is  by  proof  of  the  transaction,  be- 
tween the  parties  in  1850,  the  silbseqnent  possession  of  defen- 
dant's intestate  until  1858,  claiming  the  slaves  in  his  own  right 
and  using  them  as  his  own,  was  not  an  adverse  holding  so  as 
to  make  title  in  behalf  of  the  intestate  by  lapse  of  time. 
There  must  be  sometiiing  more^  as  an  effort  on  the  part  of  the 
bailor  to  regain  possession,  or  gome  act  by  the  bailee  chang- 
ing the  nature  of  his  holdings 

Per  CuRiAMk  Judgment  affirmed. 


•John  s.  willis  v.  w.  a.  Mjelvin. 

'The  statute,  Revised  Code,  chap.  31,  sec.  114,  authorising  a  reference  in  suits 
upon  the  bonds  of  sherilis  and  other  public  officers,  does  not  embrace  the 
case  of  a  bond  given  by  a  deputy  sheriff  for  the  indemnity  of  his  principal. 

Motion  for  a  reference,  heard  before  French,  J.,  at  the  last 
Fall  Term  of  Bladen  Superior  Court. 

The  action  was  in  debt,  brought  by  the  sherifi*  of  Bladen, 
on  a  bond  given  by  the  defendant,  as  his  deputy,  conditioned 
faithfully  to  collect  taxes  and  perform  all  the  duties  of  his 
said  office  of  deputy  sheriff.  The  breaches  assigned  were  the 
non-payment  of  money  collected  for  taxes  and  under  various 
processes. 

The  cause  having  been  put  to  issue  at  this  term,  the  coun- 
sel, for  the  plaintiflf,  moved  that  the  same  be  referred  to  the 
clerk  to  state  an  account.    This  was  objected  to  on  the  other 


DECEMBER  TERM,  1860.  63 


Willis   V.  Melvin. 


side  and  refused  b}^  the  Court,  on  the  ground,  that  he  had  no 
power  to  do  so.     From  which  ruling  the  plaintiff  appealed. 

3f.  B.  Smith,  for  the  plaintiff. 
J^iker,  for  the  defendant. 

Manly,  J.  His  Honor,  below,  was  correct  in  holding  there 
could  be  no  compulsory  reference  for  an  account  between  the 
parties  to  this  suit,  under  the  provisions  of  the  Revised  Code, 
chap.  31,  section  114.  That  section  authorises  a  reference  in 
suits  against  executors,  administrators  and  guardians,  or  upon 
the  bonds  of  sheriffs  or  other  public  officers. 

The  deputy  sheriff"  is  not  a  public  officer  within  the  purview 
of  this  section.  Ho  is  not  appointed  by  the  public,  nor  by 
virtue  of  any  special  public  authority.  lie  does  not  give  a 
bond  to  which  the  public  can  resort  ;  nor  is  he  amenable  to 
them  for  his  defaults.  There  is  no  method  of  induction  or 
oath  of  office  prescribed.  Ilis  appointment  is  made  by  the 
sheriff",  by  virtue  of  the  general  legal  power  in  all  ministerial 
officers  of  deputing  tlieir  powers,  and  arises  out  of  the  neces-^ 
sity,  in  his  particular  case,  of  having  deputies.  They  are  re- 
sponsible to  him  and  he  to  the  public.  They  give  bond  and 
are  appointed  and  dismissed  by  him  at  pleasure.  He  would 
seem,  therefore,  to  be  no  more  than  an  agent  or  servant  of  the 
sheriff ;  Ilamjyton  v.  Brown,  13  Ire.  18.  The  term,  "deputy," 
implies  this,  and  no  more  ;  for  its  definition  is,  one  wlio  is 
"  appointed,  designated  or  deputed  to  act  for  another."  Tom-^ 
lin  defines  it  "one  who  exercises  an  office,  &c.,  in  another's 
right,  having  no  interest  therein,  but  doing  all  tilings  in  his 
principal's  name,  and  for  whose  misconduct  the  principal  is 
answerable."  Whereas,  office,  clearly  embraces  the  idea  of 
tenure  in  one's  own  right,  and  jyuUio  office  is  tenure  by  virtue 
of  an  appointment,  conferred  by  public  authority. 

There  is  no  error  in  the   Court  below,  and  this  opinion  will 
be  certified  to  the  Court,  to  the  end,  that  it  may  proceed. 

We  have  liad  some  doubt  as  to  whether  this  case  is  right- 
fully before  ns.     It  is  an  appeal  from  the  judgment  of  the  Su^ 


64 


IN  THE  SUPREME  COURT. 


Griffin  v.  Tripp. 


perior  Court  declining  to  make  an  intei'locuty  order,  no  spe- 
cial leave  from  tlie  Court  appearing  upon  the  reeo-rd,  wliile  the 
whole  record  seems  to  be  certified  as  in  case  of  a  judgment 
disposing  of  the  entire  cause.  As  no  objection'  to  this  has 
been  taken  here,  we  assume  that  the  appeal  has  been  brought 
up  by  leave  and  take  jurisdiction  of  the  question  presented — 
calling  the  attention  of  the  clerks  below  to  the  Revised  Code, 
chapter  4,  sec.  23,  24. 


Pee  Curiam, 


Judgment  affirmed. 


GRIFFIN  AND  ACHEN  v.  W.  R.  TRIPP: 

A  naked  declaration  of  a  debtor  in  embaj'rassed  circumstances,  that  an  assign- 
ment of  a  note,  theretofore  made  by  him  was  bojia  fide  and  for  valuable 
consideration,  is  no  evidence,  as  against  creditors,  that  such  was  tlie  fact, 
and  such  assignment  was  Held  to  be  void'. 

This  was  an  issue  growing  out  of  an  attachment  sued  out 
against  W.  R.  Tripp,  tried  before  Heath,  J.,  at  a  Special  Term 
(January,  1860,)  of  Beaufort  Superior  Court. 

Henry  A.  Ellison  was  summoned  as  garnishee,  who  answer- 
ed that  he  had  given  a  note  to  W.  R.  Tripp,  dated  19th  of 
November,  due  1st  January,  1858,  for  the  sum  of  $936,67  ; 
that  he  liad  been  informed  by  letter  from  T.  K.  Archibald 
that  he  had  bought  this  note  ;  that  if  the  note  is  the  property 
of  the  defendant,  he  owes  him  that  sum  of  money,  but  if  the 
note  is  not  his  property,  he  owes  him  nothing,  and  issues 
were  made  as  follows  :  Whether  the  said  Ellison,  at  the  time 
of  the  service  of  the  attachment  was,  and  still  is,  indebted  to 
the  said  W.  R.  Tripp,  by  bond,  for  $936,37,  bearing  date,  &c." 
On  the  trial  it  was  proved  on  the  part  of  the  plaintiffs,  b}'' 
John  A.  Stanly,  Esq.,  that  some  time  in  October,  1857,  before 
the  institution  of  this  suit,  William  R.  Tripp  handed  him  a 


DECEMBER  TERM,  1860.  65 

Griffin-  V.  Tripp. 

note,  made  by  II.  A.  Ellison,  payable  to  said  Tripp,  to  be  col- 
lected by  liitn  as  attorney  at  law ;  that  said  note,  at  the  time, 
bore  the  endorsement  in  blank  of  said  Tripp;  that  at  the  time 
of  handing  him  this  note,  Tripp  said  it  was  tiie  property  of 
Thomas  ]v.  Archibald,  of  Tennessee;  that  he  (Tripp)  had  sold 
it  to  Archibald  some  months  before  ;  that  Archibald  request- 
ed him  to  bring  the  note  here  for  collection,  and  that  at  Tripp's 
request  he  gave  a  receipt  for  the  note  as  having  either  been 
received  from  Archibald,  or  from  Tripp  as  the  agent  of  Archi- 
bald ;  and  that  he  had  the  note  in  his  possession  at  the  time  of 
this  trial.  The  execution  of  the  note  was  admitted.  The 
plaintiff  then,  to  prove  Tripp's  insolvency,  produced  divers 
J4idgments  of  record  against  him,  which  were  still  unsatisfied. 
He  ])roved  that  Tripp  had  resided  in  Beaufort  county,  until 
a,bout  1855,  when  he  left  the  count}^  and  was  absent  when 
the  attachment  in  the  case  issued  ;  that  Archibald  was  his 
brother-in-law,  having  married  his  (Tripp's)  sister.  It  was 
proved  also  that  Archibald  was  a  man  of  property. 

The  Judge  charged  the  jury  that  there  was  no  evidence 
that  the  note  had  ever  been  delivered  to  Archibald,  and  that 
the  endorsement  did  not  convey  to  him  a  vested  title  to  the 
note  ;  and  that  if  they  believed  the  evidence,  they  should  find 
for  the  plaintiff.     Defendant's  counsel  excepted. 

Yerdict  for  tlie  plaintiff",  judgment  of  condemnation  against 
Ellison,  from  which  he  appealed  to  this  Court.. 

Rodman  and  ShaiL\  for  the  plaintiffs. 
Warren^  for  the  defendant. 

Pearson.  C.  J.  A  debtor  in  embarrassed  circumstances 
cannot  divest  himself,  as  against  his  creditors,  of  the  title  to 
any  jioi'tion  of  his  estate  by  a  voluntary  conveyance.  To 
make  the  transfer  valid  against  cretlitors,  it  must  bo  honajide 
and  for  a  valuable  considei'ation. 

If  a  debtor  executes  a  bill  of  sale  for  a  slave  and  admits 
therein  the  receipt  of  the  purchase-money,  such  admission  is 


66  IN  THE  SUPREME  COUKT. 

Stokes  V.  Arey. 

not  evidence  against  a  creditor  of  the  paj'inent  of  the  consid- 
eration ;  Claywell  v.  McGimjysey^  4  Dev.  Rep.  89. 

This  principle  is  settled.  In  our  case,  the  assignment  of 
the  note  does  not  purport  to  be  for  value,  and  there  is  not 
even  an  admission  by  the  debtor  at  the  time  of  the  supposed 
transfer,  that  the  price  was  paid.  The  onl}'  attempt  to  prove 
a  valuable  consideration  was  by  showing  the  naked  declara- 
tion of  the  debtor  at  the  time  he  handed  the  note  to  Mr. 
Stanly,  when  he  said  "  the  note  was  the  property  of  Archi- 
bald, and  that  he  had  sold  it  to  him  some  months  hefore.''^  If 
the  admission  of  a  debtor  at  the  time  he  executes  a  convey- 
ance, and  as  a  part  of  it,  that  he  had  received  a  valuable  con- 
sideration, is  not  evidence  of  that  fact,  as  against  a  creditor,  of 
course,  a  naked  declaration  made  by  him  some  months  after- 
wards, is  no  evidence  of  the  fact. 

It  follows  that  the  alledged  assignment  of  tlie  note  was  void 
as  to  creditors.     There  is  no  error. 

Pee  Curiam,  Judgment  afiBrmed. 


WILLIAM  STOKES  v.  RICHARD  T.  AREY. 

The  words,  "You  as  good  as  stole  the  canoe  of  J.   H.,"   are  not  actionable, 

per  se. 
Where  the  Court  erroneously  submitted  a  matter  of  law  to  the  jury,  and  they, 

by  their  verdict,  decided  the  matter  correctly,  it  was  Held  not  to  be  a  ground 

for  a  venire  de  novo. 

Action  on  the  case  for  slakdek,  tried  before  Fkench,  J.,  at 
the  last  Fall  Term  of  Stanly  Superior  Court. 
Plaintiff  declared  in  two  counts : 
1st.  "  You  stole  old  John  Henly's  canoe." 
2ndly.  "  You  as  good  as  stole  old  John  Henly's  canoe." 
Plea :  General  issue. 


DECEMBER  TERM,  1860.  67 

Stokes  V.  Arey. 

Evidence  was  submitted  to  the  jury  on  both  counts.  The 
'counsel  for  the  plaintiff  requested  the  Court  to  charge  the  jury, 
that  the  second  count  was  actionable  per  se.  His  Honor  de- 
clined giving  the  instruction  asked ;  but,  told  them  that  the 
'lirst  count  was  actionable  ^cr  se  ;  but,  as  to  the  second  count, 
he  submitted  it  to  the  jury  as  actionable,  or  not,  as  they  might 
find  that  the  defendant  did,  or  did  not,  intend  to  charge  the 
plaintiff  with  stealing  tiie  canoe.  Plaintiff's  counsel  ex- 
cepted. 

Verdict  and  judgment  for  defendant.     Plaintiff  appealed. 

McCorkle  and  Strange,  for  tlie  plaintiff. 
AsJie^  for  the  defendant. 

Manly,  J.  The  law  has  been  substantially  administered  in 
this  case,  and  the  S4:)pellant  has  no  just  ground  of  complaint. 
We  are  clearly  of  opinion,  that  the  words  in  the  second  count 
ought  not  to  have  been  proHOunced  actionable,  per  se,  by  the 
Oourt.  And  whether  they  ought  to  have  been  submitted  to 
the  jury  as  a  doubtful  idiom,  depending  upon  local  usage,  or 
determined  bj^  the  Court  as  matter  of  judicial  construction,  is 
indifferent  to  the  appellant;  for  quacunque  via  data,  the  re- 
sult to  him  is  the  same. 

Upon  a  submission  of  the  point  in  dispute,  to  the  jury,  they 
found  correctly;  tiiat  the  words  did  not  impute  the  offense  of 
larceny ;  and,  therefore,  any  error  committed  by  his  Honor., 
in  turning  the  matter  over  to  them,  -was,  under  the  circum- 
stances, innocuous. 

The  words,  taken  in  their  most  defamatory  sense,  mean 
nothing  more  than,  that  the  plaintiff'  had  dealt  with  the  canoe 
in  some  way  that  was  equivalent  to  stealing  it.  By  implica- 
tion, the  idea  of  the  precise  offense  of  stealing  is  excluded. 
For  it  was  something  like  it,  but  not  the  felony  itself,  and,  as 
things  like,  are  not  the  same,  it  follows  it  was  not  stealings 
with  which  the  plaintiff  was  accused.  It  is  well  settled  in 
North  Carolina,  that  defamatory  words,  actionable  per  se^ 
must  impute  an  offense,  for  which  the   accused^  if  convicted^ 


68  IN  THE  SUPREME  COURT. 

Stokes  V.  Arey. 

would  siiifer  punishment  of  an  infamous  nature ;  a  matter  of 
moral  taint,  short  of  this,  would  not  do.  No  such  offense  is 
imputed  by  the  terms  used,  and,  therefore,  the  words,  of  them- 
selves, are  not  actionable  ;  Bi^ady  v.  Wilson,  4  Hawks,  93  ; 
Skimier  v.  While,  1  Dev.  and  Bat.,  471 ;  Wall  v.  HosMns,  5 
Ired.  1Y7. 

We  have  treated  of  the  Nvords  in  question,  in  deciding  upon 
their  import  intrinsically,  as  thej  are  found  in  the  declaration, 
without  the  help  of  explanatory  averments  of  any  kind.  As 
the}^  have  not  been  lielped  by  coUoquiuin  and  innuendo, 
whose  ofKce  it  is  to  give  an  actionable  meaning  to  words,  oth- 
erwise uncertain  or  innocent,  we  suppose  they  could  notl)e  so 
aided.  Indeed,  we  take  it,  the  words  constitute  a  form  of  ex- 
pression, frequently  resorted  to  by  persons  not  precise  or  defi- 
nite in  their  use  of  terms,  to  indicate  a  trespass  or  hreach  of 
trust,  involving  a  moral  guilt,  equal  to  theft.  No  such  impu- 
tation constitutes  legal  slander  in  North  Carolina,  as  will  be 
seen  by  reference  to  the  case  last  above  cited. 

The  cases  in  the  early  English  Reporters,  which  have  been 
brought  to  our  attention,  are  not  all  reconcilable  with  each 
other,  but  this  general  principle  runs  through,  and  governs 
most  of  them,  that  the  words  must  chai-ge  a  crime  directly, 
or  by  necessary  implication.  Thus  in  Halley  v.  Btanton, 
Croke  Charles,  269,  these  words,  "  he  was  arraigned  for  steal- 
ing hogs,  and  if  he  had  not  made  good  friends,  it  had 
gone  hard  with  him,"  were  held  actionable,  because  the  lat- 
ter words,  "  if  he  had  not  made  good  friends,  &c."  showed 
that  the  speaker  believed  the  truth  of  the  accusation  ;  while 
in  Bayly  v.  Churrington,  Croke  Eliz.  279,  the  words  "thou  wert 
arraigned  for  two  bullocks,"  were  held  not  to  be  actionable, 
because  the  words  do  not  charge  stealing,  but  only  an  accu- 
sation of  it.  So,  in  a  later  case  of  Curtis  v.  Curtis,  25  Eng, 
Com.  Law  Rep.  206,  the  words,  "you  have  committed  an  act 
for  which  I  can  transport  .you,"  are  held  actionable,  for  it 
shall  be  intended  he  had  committed  some  crime,  for  which 
he  was  liable  to  transportation.  The  case  is  said  to  be  simi- 
lar in  principle  to  Donnei  case,  Croke  Eliz.  62,  where  the 


DECEMBER  TERM,  1860.  69 


Edwards  v.  Kelly. 


following  words  were  held  to  be  actionable :  "  If  you  had 
your  deserts,  you  had  been  hanged  before  now."  It  shall  be 
intended  tiiat  the  speaker  meant  he  had  committed  a  crime 
for  which  he  deserved  to  be  hanged. 

Tiie  case  of  Dnimmond  v.  Leslie,  5  Blackford's  Indiana 
Reports,  453,  is  in  conflict  with  the  current  of  English  cases, 
and,  certainly,  with  ours. 

Wliatcver  fluctuation  of  opinion  the  cases  abroad  may  pre- 
sent, we  think  the  law  is  settled  in  Korth  Carolina  to  be  as 
^bove  stated  :  That  words  are  not  actionable  per  se,  except 
they  impute  an  oifense,  subject  to  infamous  punishment  di- 
rectly, or  by  intendment,  to  be  made  manifest  by  proper  aver- 
ments. 

Pee  Curiam,  Judgment  affirmed. 


GABRIEL  EDWARDS  ei  al,  Tt-ustees,  v.  JAMES  KELLY. 

Where  a  remainder  in  slaves,  during  the  particular  interest,  was  offered  for 
sale  at  auction,  when  certain  written  terms  were  proclaimed  by  the  crier, 
and  the  defendant  was  the  last  and  highest  bidder,  but  the  property  was 
•not  delivered  to  him,  in  a  suit  for  not  complying  with  the  terms  of  sale,  it 
was  Held  that  the  contract  was  within  the  statute  of  frauds,  so  far  as  the 
bidder  was  concerned,  and  no  aclion  would  lie  against  him. 

Tnis  was  an  action  of  assumf^sit,  tried  before  Saunders,  J., 
at  a  Special  Term  (June,  1859,)  of  Wayne  Superior  Com-t. 

The  plaintiff  declared  in  three  counts. 

1st.  For  the  price  of  the  slaves. 

2nd.  For  breach  of  the  contract  in  not  complying  with  the 
terms  of  sale. 

3rd.  For  the  difference  between  the  price  at  the  first  and 
second  sales. 

The  plaiutifFs,  as  trustees,  under  a  deed  of  trust  from  one 


m  THE  SUPREME  COURT. 


Edwards  v.  Kelly. 


John  D,  Pearsall,  had  title  to  a  remainder  ini  certain  slaves- 
after  the  life-estate  of  Mrs.  Pearsall,  who  was.  still  living-.  A& 
trustees,  they  offered  the  estate  vested  in  them^,  (to  wit,  the  said 
remainder,)  for  sa4e  at  public  auction  ;  on  whfeh  occasion  the 
crier  made  known  as  the  terms  of  sale,  which  y/ere  in  writing, 
and  publicly  read  bj  him,  that  tlie  property  would  be  sold  on 
a  credit  of  three  and  six  months,  and  the  pnrcliaser  vrould  be 
required  to  give  a  note  with  two  approved  sureties,  with  in- 
terest from  the-  date,  befo-re  the  property  changed  ;,  and  that 
if  any  one  bid  off  the  property  and  failed  to  eompl)^  with  the 
conditions,  it  was  to-be  resold,  and.  the  first  purchaser  was  to 
be  liable  for  the  deficiency  in  the- price  at  the  second  sale,  t£.  any^ 
and  the  property  was  not  to.  be  delivered  until:  after  the 
death  of  Mrs.  Pearsall,  the  teoant  for  life..  The  defendant^ 
J;ames  Kelly,  was  the  last  and-  highest  bidde-r  for  the-property, 
at  the  price  of  $600,  but  he  subsequently  refused-  to.  give  note, 
aind  security,  whereupon,  it  was  again  exposed  to  sale  in  the 
presence  of  the- defendant,  and  knocked  off  to  one  Kornegay, 
at  $275. 

The  Court  intimated  an  opinion,  that  the  plaintiff  could  not 
i'ecover,,  whereupon.,  he  submitted  to.  a  nons-m.t  and  appealed^ 

Dortcfi  and  Stroyuj,,  for  the  plaintiffs. 
McBaey  for  the  defendant. 

Manly,  J.  Tl'ne  contract,  which  is  the  subject  of  this  suit,, 
falls  with-in  the  provisions  of  the  statute  of  frauds,  incorpoi-ated 
in  our  Cbde,  ch.  50,  see.  11,  aad  ia  no  part  thereof  can  be 
enforced  without  a  nJ.eniorandum,  ia  writing,  signed  by  the 
party  to  be  charged  therewith.  It  is  not  divisible  and  exempt 
from  the  operation  t>f  the  law  in  som^e-  of  its  parts,  as  for  in- 
stance, in  the  penalty  for  non-compKanee  with  the  terms  of 
the  sale,  as  insisted  in  the  argument.. 

Such  a  construction  would  render  th;©. provisions  of  the  law, 
referred  to,  inoperative.  For,  except  in  cases  wh^ere  a  specific 
performance  may  be  compelled,  the  relations  to  each  other  of 
the  parties  to  such  a  contract,  would  not  be  changed  by  the^ 


DECEMBER  TERM,  1860.  71 

Pearce  v.  Castrix. 

law.  Anterior  to  its  passage,  the  party  charged,  had  the  pow- 
er to  refuse  compliance  and  run  the  hazards  of  an  action  for 
damages,  and  the  construction,  now  sought  to  be  put  upon  it, 
gives  him  that  option — nothing  more.  It  would  be  a  palpa- 
ble inconsistency  to  declare  the  contract  void  and  of  no  effect^ 
which  is  done  by  the  statute,  and  still  to  hold  the  party  re- 
sponsible in  damages  for  its  non-fulfilment. 

In  a  case  recently  decided  in  this  Court,  Mizcll  v,  Bur- 
nett^  4  Jones,  2'i9,  general  principles  are  enunciated,  which 
have  a  direct  bearing  upon  this  case,  viz.,  that  no  part  of  a 
contract,  falling  under  the  provisions  of  the  law,  is  binding 
upon  a  party,  wJio  does  not  sign  the  writing,  while  others  who 
do  sign,  may  be  bound. 

The  opinion  of  his  Honor  below,  tliat  the  contract  was  not 
binding  upon  the  defendant,  in  submission  to  which  plaintiff 
suffered  a  nonsuit,  was  clearly  correct. 

Pee  Curiam,  Judgment  affirmed. 


WILLIAM  H.  PEARCE  v.  RAYMOND  CASTRIX. 

Debts  on  a  deceased  person,  assigned  to  one  after  the  death  of  such  person, 
do  not  constitute  the  assignee  such  a  creditor  as  to  entitle  him  to  adminis- 
tration under  the  2nd  section  of  the  46th  chapter  of  the  Revised  Code. 

This  was  a  contest  for  letters  of  administration  on  the  estate 
of  John  Brissington,  lieard  before  Bailey,  J,,  at  the  last  Fall 
Term  of  Craven  Superior  Court, 

The  decedent  was  a  native  of  England,  and  died  in  this 
county  intestate  and  without  leaving  widow  or  children.  The 
decedent  did  not  owe  the  plaintiff,  Pearce,  any  thing  at  the 
time  of  his  death,  but  after  that  event,  he  purchased  notes 
and  accounts  from  sundry  persons  to  whom  Brissington  was 
indebted,  and  these  exceeded,  in  amount,  the  debts   due  to 


72  IN  THE  SUPREME  COURT. 

Pearce  v.  Castrix. 

the  opposing  applicant,  Castrix.  Tliis  latter  resided  in  the 
State  at  the  time  of  the  decedent's  death,  and  all  his  debts 
were  due  and  owing  at  that  time.  These  debts  he  proved  by 
Iiis  own  oath.  Upon  this  state  of  facts,  his  Honor  awarded 
the  administration  to  Castrix,  on  the  ground,  that  he  was  the 
highest  creditor,  residing  in  the  State,  within  the  meaning  of 
the  statute.     From  this  order,  Pearce  appealed. 

Iliihbard^  for  the  plaintiff. 

J.  W.  £ry€cn  and  Washingtmi^  for  the  defendant. 

Pearson,  C.  J.  Upon  failure  of  the  widow,  or  next  of  kin, 
to  make  application,  the  statute  requires  administi-ation  to  be 
granted  "  to  the  highest  creditor  residing  within  the  State, 
proving  his  debt  ujpon  oath  before  the  court  granting  the 
same." 

The  requirement,  that  the  debt  shall  be  proved  by  the  oath 
of  the  creditor,  confines  the  right  to  have  administration,  to 
creditors,  between  whom  and  the  intestate,  there  existed  a 
personal  privity  of  contract,  for,  in  the  absence  of  this  privity, 
the  creditor  cannot,  by  his  oath^  prove  the  debt ;  for  instance, 
one  who  claims  as  assignee,  cannot  thus  prove  the  debt ;  he 
'may,  by  his  oath,  prove  the  assignment,  but  he  cannot  swear 
to  the  debt ;  for  that  originated  in  a  transaction  between  the 
assignor  and  the  intestate,  in  regard  to  which  he  had  no  pri- 
vity, and  must  xndX^Q-pvoo^  aliunde. 

The  policy  of  the  statute,  obviously,  is,  to  require  a  credit- 
■or,  applying  for  administration,  to  swear  of  his  own  hnoiol- 
edge,  that  the  debt  is  just  and  true.  This  is  nor  satisfied  by 
an  oath  of  the  alleged  creditor,  that  he  helieves  the  debt  to  be 
just  and  true,  and  an  offer  to  prove  it  by  witnesses.  The  onlj'' 
mode  of  proof  provided  by  the  statute  is  the  oath  of  tlie  par- 
ty. It  was  adopted,  not  merely  for  the  sake  of  convenience, 
but  because  it  is  reasonable  that  the  right  of  administration 
should  be  thus  confined  to  creditors  who  are  cognizant  of  the  ex- 
istence of  their  debts,  as,  after  administration  granted,  the 
right  of  retainer  attaches  without  further  proof.     In  England, 


DECEMBER  TERM,  1860. 


Debnile  v.  Scott. 


the  form  of  the  oath  is,  "  the  deceased  was  at  the  time  of  his 
death  justly  indebted  to  the  applicant ;"  4  Chitty  Gen.  Prac. 
147,  (note).  The  wisdom  of  this  provision  of  the  statute,  ac- 
cording to  the  construction  we  put  on  it,  is  strikinglj^  illustra- 
ted by  the  facts,  disclosed  in  the  case  now  under  considera- 
tion. The  applicant,  Pearce,  after  the  death  of  the  intestate, 
purchased  sundry  notes  and  accounts,  alleged  to  be  due  by  the 
intestate,  for  the  puipose  of  thereby  acquiring  the  right 
to  administer,  AVhether  these  notes  and  accounts  are  just 
debts  or  not,  he  does  not  know.  But  it  is  certain  he  was  un- 
der a  strong  temptation,  for  the  purpose  of  accomplishing  his 
object,  to  admit,  without  investigation,  every  claim  that  was 
offered  to  him  for  sale,  and  the  lai'ger  its  amount,  the  better 
it  suited  his  purpose  ;  tluis  opening  wide  the  door  for  admit- 
ting false  claims,  to  which,  unfortunately,  the  estates  of  dead 
men  are  too  much  exposed,  even  without  any  undue  collater- 
al influence. 

We  concur  with  his  Honor,  that  Castrix,  the  otlier  appli- 
cant, having  proved  his  debts  by  his  own  oath,  according  to 
the  requirement  of  the  statute,  was  entitled  to  the  administra- 
tion.    There  is  no  error. 

Per  Cdriam,  Judgment  affirmed. 


Doe  on  the  demise  of  GEORGE  S.  DEBRULE  v.  BENJ.  SCOTT  ei  al. 

Where  a  cause,  pending  in  court,  is,  by  rule  of  said  court,  referred  to  aibitra- 
tors,  who  proceed  to  act  and  make  an  award,  as  to  all  the  matters  m  con- 
troversy, in  favor  of  one  of  the  parties,  without  saying  any  thing  as  to  tlio 
costs,  the  successful  party  has  no  right  to  have  a  judgment  of  the  court,  lor 
the  recovery  of  his  costs. 

(The  case,  Arringion  v.  Battle,  2  Murp.  246,  cited  and  approved ;  and  the 
cases  Simj^son  v.  McBee,  3  Dev.  531,  and  Cinminfjlmm  v.  Hoiuel,  1  Ired.  9, 
commented  on.) 


74  IN  THE  SUPEEME  COUET. 

Debrule  v.  Scott. 

This  was  an  action  of  ejectment,  tried  before  Bailey,  J., 
at  the  last  Fall  Term  of  Jones  Superior  Court. 

After  this  cause  had  been  put  to  issue,  it  was,  by  a  rule  of 
Court,  referred  to  arbitrators,  who  returned  for  their  award, 
that  they  found  "all  the  issues  in  favor  of  the  defendant ;" 
but  made  no  mention  as  to  the  costs ;  on  the  coming  in  of  the 
award,  the  plaintiff  filed  various  exceptions.  These  were  over- 
ruled by  his  Honor,  who  gave  judgment  according  to  the 
award,  in  favor  of  the  defendant ;  also,  that  he  recover  all 
costs  against  the  plaintiff.  The  plaintiff  appealed  to  this 
Court. 

J.   W.  Bryan  and  Washington,  for  the  plaintiff. 
MoRae  and  Ilaughton,  for  the  defendant. 

Pearson,  C.  J.  Tiie  only  ground  insisted  on  in  this  Court, 
was  in  respect  to  that  part  of  the  judgment,  which  subjects 
the  plaintiff  to  the  payment  of  all  the  costs. 

In  support  of  the  decision  of  his  Honor,  the  cases  of  Simp- 
son v.  McBee,  3  Dev.  531 ;  and  Cunningham  v.  Ilowel,  1  Ired. 
9,  were  relied  on.  These  cases  establish  the  doctrine,  that  in 
this  State,  where  a  case,  after  issne  joined,  is  referred  by  a 
rule  of  court,  and  the  award  is  filed,  the  Court,  for  the  pur- 
pose of  enforcing  it,  enters  judgment  according  to  the  award, 
and  does  not  simply  order  an  attachment ;  and  the  argument 
is,  as  the  Court  renders  a  judgment,  the  costs  follow  the  judg- 
ment as  an  incident,  according  to  the  provisions  of  the  sta- 
tute, Eev.  Code,  ch.  31,  sec.  75.  "In  all  actions,  whatsoever, 
the  l>arty  in  whose  favor  j;udgment  shall  be  given,  shall  be 
entitled  to  full  costs." 

We  confess  there  is  much  force  in  thisreasonin.g,  especially  as 
in  the  case  of  Cunningham  v.  Ilowel,  it  is  decided  that  the 
action  of  the  Court,  upon  an  award,  is  a  judgment  of  the 
Court,  for  the  purpose  of  cliarging  bail,  and  yet  welfeel  bound^ 
upon  the  authorit}^  of  the  case  of  Arrington  v.  Battle^  2  Murph., 
216,  (which  is  directly  in  point,  and  which,  we  presume,  was 
not  called  to  the  attention  af  his   Honor,)   to   ho-ld   that   the 


DECEMBER  TERM,  1860.  75> 

Debrule  v.  Scott. 

Court  erred  in  giving  judgment  against  the  plaintiff  for  costs. 
The  award  found  all  issues  in  favor  of  the  defendant,  but  did= 
not  dispose  of  the  costs,  and  the  judgment  ought  to  have  been, 
that  "the  plaintiff  take  nothing,  and  the  defendant  go  without 
da\\"  This  was  all  that  the  award  authorized,  and  according 
to  the  case  cited,  that  Avas  the  judgment  which  the  Court 
ouglit  to  have  rendered. 

It  was  suggested  that  Arrinr/ton  v.  Battle,  as  reported,  was- 
not  a  reference  under  a  rule  of  court,  but  was  simply  a  refer- 
ence b}'  an  agreement  of  parties.  But  u))on  an  examination- 
of  the  recoid  in  this  Court,  we  find  it  M'as  a  reference  "as. 
a  rule  of  court,"  and  that  judgment  was  entered  "according 
to  the  award."  So  it  is  directh^  in  point,  and  v»o  do  not  feel 
at  liberty  to-  over-rule  it.  For,  when  a  rule  of  practice  is  fix- 
ed, the  courts  should  adhere  to  it,  unless  some  new  matter  oc- 
curs, or  there  be  some  decisive  objection.  In  this  case  there 
is  no  suggestion  of  either;  on  the  contrary,  the  practice  of  ad- 
hering strictly  to  the  award,  in  rendering  judgment,  so  as  to 
give  no  judgment  for  costs,  unless  the  award  so  directs,  has. 
uniformly  obtained  in  all  of  the  courts  of  this  S-tate  up  to  the- 
present  instance,  so  far  as  we  are  informed. 

The  case  of  Cunningliain  v.  Ilowel,  cannot  be  considered 
as  conflicting  with  Arrhu/ton  v.  Battle  ^  for  the  two  may  well 
stand  together,  the  result  being  that  a  judgment  according 
to  an  award,  is  an  anomaly,  introduced  by  the  practice  of  our 
courts,  in  order  to  enforce  awards  in  a  milder  manner  than  by 
attachment,  which  exposed  the  party  to  process  of  contempt. 
So,  although,  it  is  a  judgm-e-ut  for  the  pnrjx>se  of  charging  bail, 
yet  it  is  not  a  judgment  for  the  purpose  of  carrying  costs,  ^?r(5- 
prio  vigore,  within  the  meaning  of  the  statute.  In  other  words, 
being  a  mere  creature  of  the  Court,  there  is  no  reason  why 
it  may  not  be  so  fashioned  as  to  obviate  the  effect  of  discharg- 
ing the  bail  on  the  one  hand,  and,  on  the  other,  still  leave  to 
the  arbitrators  the  right  to  dispose  of  the  costs  ;  which  is  done 
by  treating  it  as  an  anomalous,  or  quasi  judgment;  which 
character  has  been  impressed  upon  it,  by  the  cases  referred  to, 
and  the  uniform  practice  in  this  State.     Judgment  reversed, 


76  ■     IN  THE  SUPREME  COURI. 


Barnes  v.  Haybarger. 

and  jndgraent  for  the  defendant,  but  without  costs  below.    Of 
course,  in  this  Court,  the  successful  party  is  entitled  to  costs. 

Per  Cdeiaim,  Judgment  I'eversed, 


Doe  on  dem  of  DAYID  W.  BARNES  v.  ROBERT  HAYBARaER, 

Where  the  intention  of  the  parties  to  a,  deed  is  manifest  on  its  face,  the  Court 
in  giving  a  construction  to  doubtful  provisions,  will,  if  possible,  effectuate 
such  intention. 

Where  a  wife,  after  marriage,  snppossing  the  whole  interest  in  her  land  was  in 
her,  made  a  conveyance  to  a  trustee  for  her  sole  and  separate  use,  to  which  the 
husband  signed  as  a  partj^,  and  by  various  clauses  manifested  a  concurrence  ia 
her  act^  but  did  not  profess  directly  to  convey  any  estate,  in  which  deed,  it 
is  recited  that  ten  dollars  was  paid  by  the  trustee  to  the  wife,  it  was  Held 
that  this  raised  a  use  from  the  husband  to  the  trustee,  wliich  was  executed 
by  the  statute,  and  in  tha;t  way  the  husband's  interest  passed  to  the  trustee. 

This  was  an  action 'of  ejectment,  tried  before  Bailey,  J.,  at 
the  last  Fall  Term  of  Wilson  Superior  Court. 

The  only  question,  in  this  case,  arises  on  the  following 
deed:  "  An  indenture  tripartite  made  and  entered  into  this 
4th  day  of  August,  1858,  between  Robert  Haybarger  of  the 
first  part,  Nancy  Haybarger  of  the  second  part,  and  Da- 
vid W.  Barnes,  of  the  third  part,  all  of  the  county  of 
Wilson,  and  State  of  North  Carolina:  Whereas,  the  said 
!Nancy  Playbai-ger  is  seized  and  possessed  of  certain  lands  ten- 
ements and  hen-odit;unents,  situate,  lying  and  being  in  the 
county  of  Wilson  and  State  aforesaid  :  Whereas,  it  is  agreed 
upon  by  and  between  the  said  Robert  Haybarger  and  Nancy 
Haybarger;  that  the  said  Nancy  Haybarger  should,  notwith- 
standing, have,  hold,  enjoy  and  possess  all  her  said  property 
above  described,  with  all  and  every  the  rights,  interest  and 
profits  of,  to  and  out  of  the  same,  free  and  separate  from  all 
the  claims  and  demands  of  the  said  Haybarger  arising  from 


DECEMBER  TERM,  1860.  77 


Barnes  v.  Haybarger. 


the  consummation  of  their  marriage,  and  whereas  the  said 
Nancy  Haybarger  might,  in  the  perfecting  tlieir  marriage,  be 
entitled  to  by  virtue  of  dower  or  in  any  other  way  whatsoever. 
Now,  this  indenture  loitnesseth,  that  in  consideration  of  the  said 
marriage,  and  in  pursuance  and  perfecting  of  the  said  herein- 
beibre  mentioned  agreements,  and  in  consideration  of  tlie  sum 
of  ten  doHars,  good  and  lawful  money  of  Nortli  Carolina,  to 
the  said  Nancy  Haybarger  in  hand  paid  b}^  the  said  David 
W.  Barnes,  at  or  before  the  sealing  and  delivery  of  these 
presents,  the  receipt  whereof  is  hereby  acknowledged.  She, 
the  said  Nancy  Haybarger,  with  the  consent  and  approba- 
tion of  the  said  Haybarger,  testified  hy  his  being  a  party  to 
and  sealing  and  delivering  these  presents,  hath  bargained, 
sold,  assigned  and  transferred  and  set  over,  and  by  these  pre- 
sents, doth  bargain,  sell,  assign,  transfer  and  set  over  unto 
the  said  D.  W.  Barnes,  his  executors,  administrators  and  as- 
signs, all  the  property  belonging  to,  and  in  possession  of,  the 
said  Nancy  Haybarger,  both  personal  and  i-eal,  consisting  of 
one  house  and  lot,  situate,  lying  and  being  in  the  country  of 
Wilson  and  State  aforesaid,  near  the  rail-road  at  Joyner's 
depot,  adjoining  the  lands  of  W.  G.  Sharpe  and  others,  one 
negro  woman,  Matilda,  and  child,  Caroline,  and  increase, 
household  and  kitchen  furniture,  consisting  of  three  feather 
beds  and  furniture,  fourteen  chairs,  one  chest,  one  trunk,  one 
buggy  and  harness,  one  safe,  one  cooking  stove  and  fixtures, 
to  have  and  to  hold  the  said  property  hereby  conveyed  unto 
the  said  David  W.  Barnes,  his  executors,  administrators  and 
assigns.  But,  nevertheless,  upon  the  trust  and  for  the  intent 
and  purpose  hereinafter  expressed  and  declared  of  and  con- 
cerning the  same,  that  he,  the  said  D.  W.  Barnes,  his  execu- 
tors, administrators  and  assigns,  shall  hold  and  manage  the 
said  i)roperty,  and  all  and  every  part  and  parcel  thereof  to 
and  for  the  sole  and  separate  use,  benefit  and  disposal  of  the 
said  Nancy  Haybarger,  their  marriage  notwithstanding,  and 
that  the  same,  in  no  numner  whatsoever,  shall  be  subject  to 
the  direction,  control  or  disposition  of  the  said  Robert  Hay- 
barger, her  intended  husband,  or  be  liable  for  his  debts ;  and 


78  IN  THE  SUPREME  COURT. 

Barnes  v.  Haybarger. 

upon  this  further  trust,  that  he,  the  said  D.  W.  Barnes,  his 
■executors  and  administrators  shall  and  will  pay,  transfer  and 
deliver  unto  the  said  Nanc}'^  Haybarger,  or  unto  snch  person 
or  persons,  and  at  such  time  or  times,  and  in  such  proportions, 
manner  or  form,  as  she,  the  said  Nancy  Haybarger,  may  di* 
rect,  by  her  request  or  order,  made  in  writing,  attested  by  three 
■or  more  credible  witnesses,  all  the  rents,  issues  and  profits  of 
the  said  property  so  conveyed  as  aforesaid,  and  that  all  the 
said  separate  and  distinct  estate  and  produce  and  increase 
thereof  shall  be  had,  taken,  held  and  enjoyed  by  such  person 
and  persons,  and  for  snch  use  and  uses  as  the  said  Nancy 
Haybarger  shall  at  time  or  times  hereinafter,  daring  her  life, 
limit,  devise  or  dispose  of  the  same,  or  any  thereof,  either  by 
her  last  will  and  testament,  in  writing,  or  by  any  other  wri- 
ting  whatever,  signed  with  her  hand^  in  the  presents  of  three 
or  more  credible  witnesses,  or  certified  by  an  acting  justice 
of  the  peace  of  Wilson  county.  State  of  North  Carolina,  and 
the  said  R.  Haybarger,  for  himself,  his  executors,  adminintrators 
covenant,  agree  and  promise  to  and  with  the  said  D.  W.  Barnes, 
his  executors,  administrators  or  assigns,  by  these  presents,  in 
manner  following :  he,  the  said  R.  Haj'barger,  shall  and  will  per- 
mit and  suflPer  the  said  Nancy  Playbarger  to  give,  grant,  and 
dispose  of  her  said  separate  estate  as  she  shall  think  fit  in  her 
life-time,  and  to  make  such  will,  or  other  writing,  as  afore- 
said, and  thereby  give,  order,  devise,  limit  and  appoint  her 
said  separate  estate  to  any  person  or  persons,  for  any  use,  in- 
tent or  purpose  whatsoever,  and  that  he,  the  said  Haybarger, 
shall,  and  will  permit,  and  suflfer  such  will  or  other  convey- 
ance, in  writing,  to  be  duly  proven,  as  the  law  has  made  and 
provided  in  such  cases,  and  the  probate  of  such  will,  or  other 
conveyance,  to  be  taken  and  had  in  such  cases  as  is  usual  and 
customary,  and  also  allow  the  executor,  named,  to  proceetl  to 
discharge  his  duty,  and  that  the  person  or  persons,  to  whom 
the  said  Nancy  Haybarger  shall  give  or  dispose  of  any  part 
of  her  said  estate,  by  her  will,  or  any  other  writing,  that  shall 
be  signed,  sealed  and  executed  by  her  as  aforesaid,  shall  and 
lawfully,  may  peaceably  and  quietly  have,  hold,  use,  occupy, 


DECEMBER  TERM,  1860.  79 

Barnes  v.  Haybarger. 

possess  and  enjoy  the  same,  according  io  the  true  meaning  of 
such  gift  or  conveyance,  devise  or  appointment,  without  any 
hindrances  or  interruption,  by  the  said  Robert  Haybarger,  or 
his  executors,  administrators  or  assigns,  or  any  of  them  ;  and 
tliat  he,  the  said  Haybarger,  shall  and  will,  from  time  to  time, 
and  at  all  times,  upon  any  reasonable  request,  and  at  the  proper 
cost  and  charge  of  the  said  D.  W.  Barnes,  or  his  executors  or 
administrators,  make,  do,  and  execute  all  and  every  such  fur- 
ther act  and  acts,  and  thing  and  things,  for  the  better  set- 
tling, recovering,  and  receiving  money,  goods,  and  the  estate 
of  the  said  I^ancy  Haybarger,  allotted  and  allowed  for  her 
support,  use,  benefit  and  disposal  as  aforesaid,  as  by  the  said 
D.  W.  Barnes,  or  his  executors  and  administrators,  them  or 
any  of  their  counsel,  learned  in  the  law,  shall  be  reasonably 
devised,  advised  and  requested. 

Witness,  whereof  the  said  parties  have  hereunto  set  their 
hands  and  affixed  their  seals,  the  day  and  year  above  written. 

R.  H.  IIaybakger,  [seal.'] 
ISTangy  Haybargek,  [seal.'] 
D.  W.  Barnes,  [sealj' 

This  deed  was  executed  after  the  marriage,  and  tlie  only 
point  in  the  case  is,  whether  it  passed  the  legal  estate  in  the 
land  to  the  trustee,  Barnes,  and  it  was  agreed,  that  if  his  Hon- 
or should  be  of  opinion  with  plaintiff,  on  this  point,  that  judg- 
ment should  be  entered  for  the  sum  of  $ — ,  but  otherwise, 

the  judgment  should  be  for  the  defendant. 

On  consideration  of  the  case  agreed,  the  Court  give  judg- 
ment for  the  defendant,  and  the  plaintiff  appealed. 

Strong.,  for  the  plaintiff. 

Dortch  and  Lewls^  for  the  defendant. 

BArrLE,  J.  The  indenture,  upon  the  proper  construction,  of 
which  this  controversy  depends,  was  manifestly  framed  upon 
the  idea  of  a  settlement  of  the  wife's  estate  before  marriage, 
to  her  sole  and  separate  use ;  the  execution  of  it,  by  the  hus- 
band, as  a  party,  being  intended  to  show  that  it  was  done  with 


80  IN  TPIE  SUPREME  COURT. 

Barnes  v.  Haybai'ger. 

his  approbation,  and,  therefore  no  fraud  upon  his  marital 
rights.  Upon  that  supposition,  there  were,  very  properly,  no 
words  of  conveyance  from  the  husband,  because,  had  the  mar- 
riage not  been  consummated,  he  would  not  have  had  any  in- 
terest in  the  estate  to  be  conveyed,  But  in  fact,  the  parties 
were  married  at  the  time  when  the  instrument  was  executed, 
and  the  husband  had  a  legal  interest  in  the  wife's  land  ;  but, 
that  fact  did  not  alter  the  manifest  intention  of  the  husband 
and  wife,  to  convey  her  estate  to  a  trustee,  for  her  sole  and 
separate  use.  The  question  is,  can  the  deed,  by  an}'  fair  rules 
of  interpretation,  be  construed  to  transfer  the  husband's  inter- 
est in  the  land  to  the  trustee,  and  thus  give  effect  to  that  in- 
tent, or,  in  failing  to  do  so,  must  the  purpose  to  provide  a 
seperate  estate  for  the  wife  be,  almost,  if  not  entirely  defeat- 
ed ?  The  intention  of  all  the  parties  to  the  deed,  being  clear, 
beyond  all  doubt,  upon  its  face,  we  have  the  highest  author- 
ity for  saying,  that  it  ouglit,  if  possible,  to  be  effectuated.  In 
Smith  V.  PaTkliurst^  3  Atk.  Rep.  135,  Lord  Chief  Justice 
WiLLES  said,  "Another  maxim  is,  that  such  a  construction 
should  be  made  of  the  words  of  a  deed,  as  is  most  agreeable  to 
the  intention  of  the  grantor;  tlie  words  are  not  the  principal 
thing  in  a  deed,  but  tlie  intent  and  design  of  the  grantor; 
we  ha\'e  no  power,  indeed,  to  alter  the  words  or  to  insert  words 
which  are  not  in  the  deed,  but  m'c  may  and  ought  to  construe 
the  words  in  a  manner  the  most  agreeable  to  the  meaning  of 
the  grantor,  and  may  reject  anj'  Avords  that  are  mei-ely  insen- 
sible. Those  maxims  my  Lords!  are  founded  upon  the  grea- 
test authority.  Coke,  Plowden  and  Lord  Chief  Justice  Hale, 
and  the  law  commends  the  astutia — the  cunning  of  Judges  in 
construing  M'ords  in  such  a  manner  as  shall  best  answer  the 
intent ;  the  art  of  construing  words  in  such  a  manner  as  shall 
destroy  the  intent,  may  show  the  ingenuity  of,  but  is  very  ill 
becoming  a  Judge."  Li  the  case  before  us,  the  husband  and 
wife  are  both  named  in  the  deed  as  parties  thereto,  and  both 
executed  it,  and  it  was  the  intention  of  both,  as  expressly  de- 
clared, that  the  wife's  land  should  be  conveyed  to  the  trustee. 
Under  a  mistaken  supposition  that  the  sole  interest  was  in  her, 


DECEMBER  TERM,  1860.  81 

Barnes  v.  Haybarger. 

the  granting  words  purport  to  be  from  her  alone,  but  the  law 
will  allow  them  to  operate  on  his  interest,  if  it  be  possible  to 
give  them  that  effect ;  thus,  in  one  instance  out  of  many 
which  might  be  cited,  there  was  an  instrument,  which  pur- 
ported to  be  a  release,  grounded  on  a  lease  for  a  year,  but 
there  was  not  any  evidence  of  the  lease,  and  the  deed  was  in 
consideration  of  money,  and  of  marriage  theretofore  had,  &c., 
and  Lord  IIakdwickk  held  that  the  deed  might  operate  as  a 
covenant  to  stand  seized;  Broviu  v,  JoneSyl  Atk.  190.  In 
2  Shop.  Touch.  51i,  (see  31  Law  Lib.  403.)  it  is  said  that, 
"the  mere  circumstance  that  the  party  intended  to  pass  the 
property  in  anotiicr  manner,  is  not  always  decisive  of  the  ef- 
fect of  an  instrument.  The  rule  cum  quod  ago^  non  valet  ut 
cujo^  Vidcat  qncuitum  vaJere  j)otesi  interferes  with  the  mw7<?  and 
directs  its  foi'ce  to  the  effect^  and,  therefore,  it  seems  necessa- 
ry to  discard  the  intention  as  to  the  mode  and  resort  to  the 
general  intention  ;  therefore,  whatever  may  be  the  words,  the 
instrument  will  operate  according  to  the  effect  which  the 
parties  intended  to  give  to  it."  The  leained  author  adds  tliat 
"  this  position  necessai-ily  admits  of  the  exceptions  which  arise 
from  instruments  requiring  particular  circumstances  to  give 
them  ojieration."  Tiiese  excej)tions,  however,  do  not  apply 
to  the  pieseut  case,  and  we  shall  not  give  them  any  further 
notice. 

Li  the  instrument,  now  under  consideration,  the  intended 
mode  of  its  operation  was  to  transfer  the  land  to  the  trustee 
from  the  wife,  because  she  was  supposed  to  be  solely  seized 
of  it,  but  to  give  it  complete  effect,  the  interest,  which  the 
husband  actually  had  in  the  land,  must  also  be  ti-ansfei-red  to 
the  trustee.  Tiie  instrument  is  a  deed  of  bargain  and  sale, 
which,  it  is  well  known,  oi)erates  by  having  an  use  first  rais- 
ed upon  a  valuable  coiisideration,  and  then,  by  the  statute  of 
uses  transferring  the  possession  to  the  use  raised  and  declared 
in  favor  of  the  bai-gainee  ;  See  1  Saunders  on  Uses  and  Trusts, 
49,  79,  80.  In  the  present  deed,  the  ten  dollars  recited  as 
paid  to  the  wife,  was,  in  legal  eifect  paid  also  to  the  husband, 
so  that  a  use  was  raised  from  him,  and   it  was  declared  in  fa- 

6 


S2  .  IK  THE  SUPEEME  COURT. 

G-riffin  v.  Hadley. 

vor  of  the  bargainee,  Barnes,  by  the  wife  for  her  husband,  as 
expressly  authorised  by  him  in  the  same  instrument.  In  this 
way,  his  interest  in  the  land,  was  as  effectually  conveyed  to 
the  plaintiff,  in  this  suit,  as  if  it  had  been  done  directly  and 
in  express  words :  see  CohJ)  v.  Sines,  Busb.  Eep.  343. 

The  cases  of  Kerns  v.  Peeler,  4  Jones,  226  ;  Gray  v.  Ma- 
this,  7  Jones,  502,  and  the  other  cases  therein  referred  to, 
which  are  relied  upon  by  the  defendant's  counsel,  are  not  at 
all  opposed  to  this  construction.  In  Kerns  v.  Peeler,  the 
name  of  the  wife  was  not  inserted  in  the  deed  from  her  hus- 
band as  a  party  to  it,  and  she  did  not  sign  and  seal  it,  until 
long  after  it  had  been  delivered  by  the  husband.  In  Gray  v. 
Mathis,  the  name  of  the  husband  was  not  contained  in  the 
instrument  executed  by  his  wife,  so  that  he  was  not  a  party 
to  it,  notwithstanding  his  having  added  his  signature  and 
seal  to  those  of  his  wife.  The  same  remark  is  applicable  to 
the  other  cases  referred  to  in  those  :  but  in  the  ease  now  be- 
fore us,  tlie  husband  was  named  in  the  deed  as  a  party,  and 
executed  it  as  a  party,  which  makes  an  essential  difference 
between  it  and  the  other  cases.  The  judgment  must  be  re- 
versed, and  a  judgment  must  be  entered  upon  the  case  agreed 
for  the  plaintiff". 

Pee  Cukiam,  Judgment  reversed. 


RUFEIN  GRIFFIN  v.  THOMAS   HADLEY. 

Where  an  abitrator  disposes  of  matter  which  was  referred  to  him,  and  also  of 
matter  not  referred,  and  the  two  are  in  their  nature  separable,  it  is  the  duty 
of  the  Court  to  give  judgment  for  that  which  is  within  the  terms  of  the 
submission,  and  reject  that  which  is  without. 

An  abitrator  has  no  right  to  award  himself  a  fee  for  his  services,  unless  the 
power  to  do  so  is  expressly  contained  in  the  submission. 


DECEMBER  TERM,  1860.  83 


Griffin  v.  Hadley. 


Appeal  from  the  Superior  Court  of  Johnston,  Spring  Terra, 
1860,  Saunders,  J.,  presiding. 

After  pending  for  several  terms,  the  following  rule  of  Court 
was  entei-ed  in  the  cause,  to  wit :  "All  matters  in  dispute  referred 
to  E.  G.  Haywood."  The  alntrator  reports  his  proceedings,  and 
the  evidence  laid  before  him,  and  thereupon  awards  as  follows : 
The  arbitrator,  therefore,  awards  to  the  plaintiff  $93.83,  with 
interest  on  $6ii.50,  from  the  first  da}''  of  this  terra  until  paid. 
He  further  awards,  that  the  defendant  shall  pay  the  costs  of 
this  suit,  and  also  the  costs  of  the  reference,  including  $25  to 
be  paid  to  the  arbitrator  for  4  days,  or  parts  of  days,  engaged 
in  this  arbitration ;  and  that  the  clerk  of  the  Superior  Court 
of  Johnson  County  do  tax  the  costs  accordingl}',  and  do  issue 
execution  for  the  said  costs,  and  for  the  sum  aforesaid."  The 
defendant  excepted  to  this  award, 

1.  Because  the  arbitrator  has  not  allowed  him  opportunitj'- 
to  procure  witnesses. 

2.  ]3ecause  he  has  not  allowed  the  defendant's  account  as 
a  set  off". 

.3.  Because  he  has  not  allowed  credits,  stated  and  admitted 
by  the  plaintiff. 

The  cause  was  argued  on  the  exceptions  to  the  award,  and 
his  Honor  gave  judgment  as  follows  :  "In  this  case  the  award 
is  confirmed.  Judgment  according  to  the  aw\ard  for  $93.83,  of 
which  sum,  $62.50,  is  principal,  and  carries  interest  from  22 
March,  1858."     From  which  defendant  appealed. 

Miller  and  A.  31.  Zetois,  for  the  plaintiff. 
Moore,  for  the  defendant. 

Manly,  J.  This  cause,  by  a  rule  of  the  Court  below,  was 
referred  to  an  arbitrator,  whose  award  was  to  be  a  judgment 
of  the  Court.  An  award  was,  in  due  time,  reported  to  the 
Court  in  favor  of  the  plaintiff  for  $93.83,  principal  and  in- 
terest ;  and  for  his  costs  to  be  taxed,  including  a  fee  to  the  ar- 
bitrator. Three  exceptions  were  taken  by  the  defendantj  to 
the  award  in  the  Court  below,  viz : 


84  I^  THE  SUPEEME  COUET. 

Griffin  v.  Hadley. 

1st.  Because  tlie  arbitrator  Lad  not  allowed  the  defendant 
opportunity  to  procure  witnesses. 

2nd.  Had  not  allowed  defeudant's  account  as  a  set  off, 

3rd.  Had  not  allowed  credits  stated  and  admitted  by  the 
plaintiflF. 

A  judgment  was  given,  according  to  award,  for  $93,83, 
without  noticing  the  award  in  respect  to  costs,  or  making  any 
special  disposition  of  them.  In  this  Court,  it  is  moved,  in  ad- 
dition to  the  grounds  below,  to  set  aside  the  award  for  defects 
appearing  upon  its  face,  our  attention  being  particularly  call- 
ed, in  this' connexion,  to  the  award  of  the  fee  to  the  arbi- 
trator. 

We  have  considered  these  various  grounds  of  objection  to 
the  award,  and  approve  tlie  judgment  of  the  Court  thereon. 
The  compensation,  to  himself,  did  not  lie  within  the  terms  of 
the  matter  submitted,  and,  consequently,  was  not  within  the 
scope  of  the  arbitratoi''s  powers.  But  for  that  reason,  the  ar- 
bitrament is  not  void  in  toto.  It  may  be  bad  in  part,  and  good 
in  part.  And  where  an  arbitrator  disposes  of  the  matter  wliich 
was  referred,  and  also  of  other  matter  not  referred,  and  the 
two  are  in  their  nature  separable,  it  is  the  duty  of  the  Court 
to  distinguish  them,  and  give  judgment  for  that  which  is  with- 
in the  terras,  and  reject  that  which  is  without;  Cowans.  Mc- 
Necly^  10  Ired.  5.  It  will  be  perceived  by  reference  to  the 
judgment  of  the  Court,  that  it  does  not  embrace  the  compen- 
sation in  question,  or  indeed,  an}'  costs  at  all.  It  is  a  judgment 
simply  for  $93.83,  awarded  to  plaintiff,  which  is  precisely  the 
judgment  which  ought  to  have  been  given,  witli  the  addition 
of  the  costs,  that  were  taxable  by  law,  against  the  defendant. 

We  did  not  understand  the  matters  of  exception  in  the 
Court  below,  to  be  pressed  in  this  Coni't.  They  are,  clearly, 
matters  which  might  have  been  addi-essed  in  proper  time  to 
the  abitrator's  discretion,  but  form  nogi'oimd  for  tlie  court's  in- 
terference. It  is  not  alleged  that  any  fraud  or  imposition  was 
practiced  upon  the  arbitrator,  or  that  he  was  corrupt  or  par- 
tial, which  might  form  a  ground  of  exception  to  an  award, 
when    made  under  a  rule   of  Court ;  but,    the   allegation   is, 


DECEMBER  TERM,  1860.  85 

Wilder  v.  Ireland. 

merely,  of  certain  matters  in  which  the  arbitrator  mistook 
facts  or  law,  or  else  exercised  his  discretion  to  the  prejudice 
of  the  defendant.  This  does  not  constitute  gronnd  for  setting 
aside  an  award;  Eaton  v.  Eaton^  8  Ired,  Eq.  102. 

Upon  the  whole, the  judgment  below  does  the  defendant 
no  legal  wrong.  It  was  based  upon  a  part  of  the  award,  clear- 
ly valid,  and  the  only  defect  in  it  is,  the  omission  to  embrace 
the  costs  awarded,  which  were  within  the  powers  of  the  arbi- 
trator :  i.  e.,  the  taxable  costs,  which  maj'^  now  be  done — the 
fee  to  arbitrator  exchulcd, 

Pp:k  CuaiAM,  Judgment  affirmed. 


WILLIAM  WILDER  v.  JOHN  IRELAND. 

Where  one  devised,  in  1828,  to  a  trustee,  to  the  use  and  benefit  of  a  woman, 
for  her  life,  remainder  to  the  use  of  all  her  children,  it  was  Hdd  that  by 
■force  of  the  statute  of  uses,  the  legal  estate  for  life,  was  executed  in  the 
woman,  and  that  it  made  no  dili'erence  that  chattel  property  was  conveyed 
to  the  trustee  by  the  same  will. 

Hdd  furllier,  that  the  legal  estate  in  tlje  remainder,  by  force  of  the  same 
statute,  passed  to  the  children  she  had  at  the  time  of  the  devise,  subject  to 
the  participation  of  such  as  she  might  thereafter  have. 

Where  a  vendee  brought  an  action  against  an  intruder,  and  failed  to  recover, 
but  not  on  account  of  a  defect  of  the  vendor's  title,  (which  was  sufficient  to 
sustain  the  action.)  it  was  //eW,  in  an  action  on  his  covenant  for  quiet  en- 
joyment, that  this  did  not  amount  to  a  breach  of  the  covenant. 

A  covenant  of  quiet  enjoyment  in  a  deed,  conveying  a  fee,  is  not  broken  if  the 
covenantor  had  title  to  a  life-estate,  though  his  title  failed  as  to  the  remainder. 

neld  further,  that  withholding  of  his  title-deed  on  the  occasion  of  the  trial, 
by  the  covenantor,  (it  not  having  been  registered)  was  no  breach  of  the 
covenant. 

Note  the  alteration  of  the  phraseology  of  the  statute  of  uses  in  Rev.  Stat- 
utes, chap.  43,  sec.  4,  and  in  Rev.  Code,  chap.  43,  sec.  6,  and  quere  as  to 
its  effect. 

Action  of  covenant,  ti-ied  before  Saunders,  Judge,  at  the 
Spring  Term,  1860,  of  Franklin  Superior  Court. 


86  IN  THE  SUPEEME  COUET. 

Wilder  v.  Ireland. 

The  plaintiff  declared  for  a  breach  of  the  following  cove- 
nant,, contained  in  a  deed,  from  the  defendant  to  liim,  dated 
16tb  day  of  Febrnarj^,  1858,  conveying  to  the  plaintiff  and 
his  heirs  the  land  in  question  :  "  And  for  the  better  security, 
I  do  agree  to  warrant  and  defend  the  saii"ke,  both  in  law  and 
equity." 

The  plaintiff  was  put  into  possession  of  the  premises,  and 
after  he  had  remained  thereon  for  about  four  months,  one 
Perry  entered  and  ousted  plaintiff  and  retained  the  posses- 
sion. The  plaintiff'  brought  an  action  of  ejectment  against 
Perry  to  regain  possession,  of  which  he  gave  notice  to  the 
defendant.  The  defendant,  in  reply,  said  he  had  a  deed  for 
the  land,  in  question,  from  Benjamin  Cook  and  Elizabeth  his 
wife,  but  no  such  deed  was  produced  on  the  trial  of  this  ac- 
tion of  ejectment,  and  none  such  had,  at  that  time,  been  re- 
gistered in  Franklin  county,  and  from  a  supposed  defect  of 
the  plaintiff's  title,  a  verdict  and  judgment  were  rendered 
for  the  said  Perry.  Tlie  record  of  this  suit  is  filed  as  part  of 
the  case. 

The  defendant,  at  the  time  of  his  conveyance,  did  have  a 
deed  of  bargain  and  sale  from  Benjamin  Cook  and  Elizabeth 
Cook  his  wife,  dated  16th  Februar}'-,  1858,  purporting  to  con- 
vey the  land,  in  question,  to  him,  the  defendant,  for  the  con- 
sideration of  $555,  which  it  was  admitted  was  paid  to  said 
Cook.  After  the  commencement  of  the  present  action,  to  wit, 
in  18G0,  Cook  and  his  wife  acknowledged  the  deed  to  de- 
fendant, in  due  form  of  law,  before  a  Judge  of  the  Superior 
Court,  wlio  certified  it  with  privy  examination  of  the  wife^ 
and  ordered  it  to  be  registered,  which  was  immediately  done. 

Cook  and  his  wife  claimed  title  to  the  land  in  question,  un.- 
der  the  will  of  John  Perry,  which  was  executed  on  the  27th 
of  November,  1828,  and  was  proved  at  March  County  Court  of 
Franklin,  1829.  The  followiug  is  the  clause  of  the  will  bear- 
ing on  the  point :  "  I  will  and  bequeath  unto  my  worthy 
friend,  Matthew  Strickland,  his  heirs  and  assigns,  the  follow- 
ing property,  on  trust,  for  the  use  and  benefit  of  my  daugh- 
ter, Elizabeth,  the  tract  of  land  whereon  she  now  lives,  one 


DECEMBER  TERM,  1860.  87 


Wilder  v.  Ireland. 


negro  woman,  named  Clarissa,  her  three  children,  to  wit, 
Toney,  Adam,  Berget  and  their  future  increase;  after  the 
death  of  my  daughter,  Elizabeth^  it  is  my  wish  and  desire, 
that  the  above  property  be  equally  divided  between  all  my 
daughter's  children,  except  John  P.  Cook." 

The  foregoing  is  the  substance  of  the  facts  agreed  on  by 
the  counsel  on  both  sides  and  submitted  to  his  Honor,  with 
an  agi-eement,  that  if  he  should  be  of  opinion  with  the  plain- 
tiff, that  a  judgment  should  be  rendered  for  $555,  with  inter- 
est and  the  costs  of  the  action  of  ejectment. 

There  was  a  further  agreement  for  the  recovery  of  a  lesser 
sum,  as  damages,  according  as  his  Honor  might  decide  as  to 
certain  other  points  submitted  in  the  case  agreed,  but  the 
statement,  as  to  this  matter,  is  made  immaterial  by  the  view 
taken  of  the  case  in  this  Court. 

Ilis  Honor,  in  the  Court  below,  being  of  opinion  with  de- 
fendant, a  judgment  was  entered  accordingly,  from  which  the 
plaintiff  appealed. 

J.  J.  Davis  and  B.  F.  Moore,  for  the  plaintiff. 
Miller,  for  the  defendant. 

Pearson,  C.  J.  We  concur  in  the  conclusion  of  his  Hon- 
or, that  upon  the  facts  agreed,  the  plaintiff  was  not  entitled  to 
recover. 

To  maintain  the  action,  it  w\'is  necessary  for  the  plaintiff  to 
show  that  the  deed  of  the  defendant  contained  a  covenant  of 
quiet  enjoyment,  and  that  he  was  evicted  by  reason  of  a  title 
paramount. 

Let  it  be  assumed  that  the  deed  contains  a  general  warran- 
ty or  covenant  of  quiet  enjoyment. 

Let  it  be  also  assumed  that  the  failure  of  the  plaintiff  to 
recover  in  the  action  of  ejectment  brought  against  Perry, 
amounted  to  an  eviction  ;  for  this,  see  Alexander  v.  Torrence, 
6  Jones,  260 ;  Grist  v.  Hodges,  3  Dev.  200. 

The  case  is  thus  narrowed  to  this :  was  the  eviction,  by 
reason  of  a  title  paramount  ?  in  other  words,  was  there  a  de- 


'88  IN  THE  SUPEEME  COURT. 

Wilder  v.  Ireland. 

feet  in  the  title  of  the  clefeiidant,  in  consequence  of  which, 
the  plaintiff  was  unable  to  regain  possession  of  the  land?  It 
is  settled,  that  where  a  vendee  is  sued  in  ejectment,  and  a  re- 
covery is  effected,  in  his  action  against  the  vendor  on  the  cov- 
enant of  quiet  enjoyment,  the  judgment  in  ejectment  is  no 
evidence  of  a  defect  in  the  title  of  the  vendor,  and  it  is  neces- 
sary for  the  plaintiff  to  establish  that  fact  by  distinct  proof; 
Martin  v.  Cowles,  2  Dev.  and  Bat.  102.  Such  being  the  law., 
"where  a  recovery  in  ejectment  has  been  effected  against  the 
vendee,  and  he  has  been  put  out  of  possession,  as  a  matter  of 
course,  it  is  likewise  so  where  the  vendee  fails  to  maintain  an 
action  of  ejectment,  and  relies  on  such  failure,  to  establish  his 
allegation  of  an  eviction.  Indeed,  in  Grist  v.  Hodges  sup.,  it 
is  assumed  as  a  matter  beyond  question,  where  the  vendee 
had  failed  in  maintaining  an  action  of  ejectment,  "  the  event 
of  that  suit,  proves  nothing  in  the  action  on  the  covenant." 

Our  case,  therefore,  turns  upon  the  construction  of  the  will 
of  John  Perry  :  did  the  devise  to  his  daugliter,  Elizabeth,  vest 
in  her  a  mere  trust  estate,  or  did  the  legal  title  pass  to  her  by 
force  of  the  statute  of  uses,  27  Hen.  8  ?  We  think  it  is  clear, 
that  the  limitation  of  the  use  came  within  the  operation  of  the 
statute.  By  fcrse  of  the  devise,  Matthew  Strickland  was  seiz- 
ed in  fee  simple,  to  the  use  of  the  said  Elizabeth  for  life,  and 
then  in  remainder  to  the  use  of  all  of  her  children  (except 
John  P.  Cook,)  in  fee.  Where  one  person  is  seized  to  the  use 
■of  another,  the  statute  carries  the  legal  estate  to  the  person 
having  the  use.  But  three  classes  of  casses  are  made  excep- 
tions to  its  operation,  i.  e. :  Where  a  use  is  limited  on  a  use. 
2.  Where  the  trustee  is  not  seized,  but  only  possessed  of  a 
chattel  interest ;  and  3rd.  Where  the  purposes  of  the  trust 
make  it  necessary  for  the  legal  estate,  and  the  use  to  remain 
separate;  as  in  the  case  of  land  conveyed  in  trust  for  the  sep- 
arate use  and  maintenance  of  a  married  woman.  This  is  fa- 
miliar learning;  see  Black.  Com. 

Bj'  the  will,  under  consideration,  the  testator  gives  to  Strick- 
land and  his  heirs  "  the  following  property,  in  trust,  for  the  use 
and  benefit  of  my  daughter,  Elizabeth,  the  tract  of  land  where- 


•DECEMBER  TERM,  1860.  89 

Wilder  v.  Ireland. 

on  she  now  lives, and  a  negro  woman  and  lier  children,  and,  af- 
ter the  death  of  my  daughter,  Elizabeth,  the  above  property  to 
be  equally  divided  between  all  her  children,  except  John  P. 
Cook."  This  is  the  limitation  of  an  ordinary  use.  There  is 
no  trust  for  the  "separate  use"  and  maintenance  of  a  married 
woman.  Indeed,  it  does  not  appear  by  the  will,  that  the  tes- 
tator's daughter,  Elizabeth,  was  at  that  time  under  coverture, 
and  we  should  have  been  at  a  loss  to  conceive  of  a  reason  why 
it  had  been  supposed  that  the  case  did  not  fall  within  the 
operation  of  the  statute,  except  for  the  suggestions  made  on 
the  argument. 

It  was  suggested  that  the  statute  did  not  operate,  because 
a  negro  woman  and  her  children  were  embraced  in  the  same 
clause,  in  respect  to  which  property,  tiie  trustee  was  not  seiz- 
ed, but  oidy  possessed,  and  as  the  statute  did  not  apply  to  tlic 
slaves,  it  was  argued  that  it  could  not  a]iply  to  the  land.  We 
are  unable  to  perceive  the  force  of  this  reasoning.  It  is  cer- 
tain that  the  tiHistee  was  seized  of  the  land  for  the  use  of  the 
daughter:  So,  the  case  is  within  the  woi-ds  of  the  statute,  and 
it  does  not  fall  under  either  of  the  excepted  cases,  and  no  au- 
thorit}'  was  cited  to  sustain  the  idea  of  a  fourth  exception, 
that  is,  when  chattel  property  is  conveyed  to  the  trustee  by 
the  same  deed  or  will!  In  fact,  it  is  certain  that  the  books 
do  not  recognize  this  ''\fourth  exception." 

It  was  also  suggested  that  the  statute  could  not  execute  the 
life-estate  in  the  daughter,  because  it  could  not  execute  the 
remainder  in  the  children,  inasmuch  as  the  intention  was  to 
give  the  use  in  the  remainder  to  all  of  the  children — those  that 
might  afterwards  be  born,  as  well  as  those  then  inesse.  If  it  were 
admitted  that  the  use  in  the  remainder  was  not  executed,  it  would 
by  no  means  follow,  that  the  use  in  the  life-estate  was  not 
executed.  But,  in  truth,  the  use  in  the  remainder  was  exe- 
cuted. It  is  the  familiar  instance  of  a  springing,  or  shifting 
use,  which  is  fed  by  a  scintUla  juris  left  in  the  trustee, 
according  to  the  docti'ine  in  Chudleigh^s  case.  Coke  Reports. 
The  effect  of  the  statute  was  to  vest  the  legal  estate  in  Mrs. 
Cook,  for  life,  and  to  vest  the  legal -estate  in  remainder  in  her 


00  m  THE  SUPREME  COURT. 

Wilder  v.  Ireland. 

children,  then  living,  except  John,  Icaviug  a  scintilla  juris 
in  the  trustee  in  the  event  of  her  having  any  child  or  chil- 
dren born  afterwards. 

This  disposes  of  the  case  ;  for  as  Mrs.  Cook  had  the  legal 
estate,  for  life,  which  passed  to  the  plaintiff,  it  follows  there 
is  no  defect  in  the  title,  by  reason  of  which  he  could  not  re- 
cover the  possession.  So,  the  covenant  for  qidet  enjoyment 
has  not  been  broken,  and  the  eviction  was  not  by  reason  of  a 
title  paramount,  but  was  simj)ly  tortious. 

It  is  true,  there  is  a  defect  of  title  in  respect  to  the  remainder  \ 
but  that  does  not  amount  to  a  breach  of  the  covenant  of  quiet 
enjoyment,  which  is  the  only  covenant  which  the  plaintiff 
had  the  precaution  to  take  for  his  protection.  It  is  his  misfor- 
tune tliat  he  did  not  have  the  deed  drawn  by  a  lawyer,  who 
■would  also  have  inserted  a  "  covenant  of  seizin,"  i.  e.,  that  the 
defendant  had  a  title  in  fee  simple,  and  could  convey  in  fee. 
Sucli  a  covenant  is  broken  whenever  there  is  a  defect  in  the 
title,  and  its  office  is  to  provide  for  a  case  like  ours,  where 
the  defect  is  in  respect  to  the  remainder  or  reversion. 

It  was  stated  at  the  bar,  and  in  fact,  it  is  manifest  from  the 
case  agreed,  that  the  position  that  Mrs.  Cook  had  the  legal 
estate,  for  life,  was  not  taken  in  the  Court  below.  However, 
that  may  be,  the  point  is  presented  by  "the  facts  agreed,"  and 
is  decisive  of  the  case  ;  it  is,  consequently,  unnecessary  to  no- 
tice the  se-veral  phases  which  are  stated,  bearingon  the  ques- 
tion as  to  the  amount  of  damages. 

The  position,  that  supposing  the  title  to  be  good  for  the  life 
of  Mrs.  Cook,  still  the  plaintiff"  was  entitled  to  recover  the  costs 
of  the  action  of  ejectment,  is  untenable  ;  for  certainly,  the 
fact,  that  the  vendor  did  not  furnish  the  deed  from  Cook  and 
wife  at  the  trial,  and  that  the  deed  had  not  been  registered, 
was  no  b)'each  of  the  covenant  of  quiet  enjoyment,  which 
must  depend  on  a  defect  in  the  title  and  right  of  possession. 

Pee  Curiam,  Judgment  affirmed.* 

*NoTE. — After  the  opinion  was  filed,  our  attention  was  called  to  the  fact, 
that  in  the  Rev,  Stat.  chap.  43,  sec.  4,  and.  the  Rev.  Code  oh.  43,  sec.  6,  the- 


DECExMBER  TERM,  1860.  91 


Buchanan  v.   McKenzie. 


WILLIAM  BUCHANAN  et  al  (  plaintiffs  in  error.)  v.  B.  B.  McKENZIE, 
{defendant  in  error.) 

The  fact  that  a  county  court,  by  a  special  statute,  cannot  hold  jury  trials,  does 
not  deprive  a  party  of  his  common  law  right,  to  have  issues  of  fact  tried 
by  a  jury. 

"Where  on  a  writ  of  error,  a  judgment  of  the  county  court,  refusing  to  let 
a  party  plead,  was  reversed  in  the  superior  court  foi  error,  the  proper  course 
was,  to  send  the  case  back  to  the  county  court,  that  the  i)laiutift',  in  error, 
might  be  restored  to  all  things  which  he  had  lost,  and  it  was  IMd  to  be 
enor  for  the  Judge  to  give  leave  to  the  par'ty  to  enter  his  pleas  in  the  Su- 
perior Court. 

Wkit  of  f.krok,  coram  vobls,  before  Saunders,  J.,  at  a  Spe- 
cial Term,  June,  I860,  of  Richmond  Superior  Court. 

The  plaintiffs,  in  error,  were  the  sheriff  of  that  county  and 
his  sureties.     They  were  summoned   at   the   instance   of  the 

general  words  used  in  27  Hen.  8  chap.  10,  i.  e ,  "  When  one  person  or  pQC- 
sons  stand,  or  be  seized,  or  at  any  time  hereafter  shall  happen  to  be  seized'  of 
land,  &c.,  to  the  use  of  any  other  person,  persons  or  body  politic,  by  reason 
of  any  bargain,  sale,  leofment,  &c.,  or  otherwise,  by  any  manner  or  means 
xvhatosever  it  he,  the  persons,  &c.,  having  the  use,  shall  have  the  legal  estate, 
&c.^'  are  omitted,  and  the  provision  is  simply  "  By  deed  of  bargain  and  sale, 
lease  and  release  and  covenant  to  stand  seized,  the  possession  shall  be  trans- 
ferred to  the  bargainee,  releasee,  covenantee,  &c."  This  may  have  a  very 
important  eflect  on  the  title  to  land  in  many  cases,  but  our  case  is  not  allect- 
ed  by  it,  because  the  will  of  John  Perry  was  executed  in  1828,  and  was 
proved  in  1829. 

After  the  statute  of  wills,  32  Hen.  8,  a  question  was. made,  whether  27  Hen. 
8.  applied  where  one  was  seized  to  tUe  use  of  another  by  force  of  a  devise. 
The  question,  however,  has  long  been  at  rest..  Mr.  Blackstone,  in  his  learn- 
ed commentaries,  classifies  the  exceptions  to  the  operation  of  the  statute  un- 
der three  heads,  and  does  not  allude  to  the  fact,  that  the  question  referred  to, 
had  ever  been  started,  but  pas.ses  it  over  as  one  of  "  the  refinements  and 
niceties  suggested  by  the  ingenuity  of  the  times,"  2  Black.  33C.  See  also 
Broughton  v.  Lanr/hy,  Salk  C79,  where  Lord  Holt  treats  the  question  as  set- 
tled. The  curious  reader  will  find  the  subject  treated  of  in  Powell  on  De- 
vises, 211-13-U. 

It  is  conceded,  on  all  hands,  that  the  statute  of  Uses,  27  Hen.  8,  chap.  10, 
was  in  force  and  in  use,  in  this  State,  up  to  the  passage  of  the  Revised  Stat- 
utes (1836).  Indeed,  all  of  the  conveyances  of  land,  adopted  and  used  in  this 
State,  are  based  on,  and  take  eflect  by,  the  operation  of  that  statute. 


•92  IN  THE  SUPREME  COUET. 

BuchaBan  v.   McKenzie. 

county  trnstee,  by  written  notice,  to  appear  at  a  term  of  the 
county  court,  to  show  cause  why  judgment  should  not  be  en- 
tered against  them,  on  motion,  for  the  county  taxes,  collected 
by  the  said  sheriff  for  the  year,  covered  by  their  bond.  At 
the  term  aforesaid,  the  defendants,  (plaintiffs  in  error,)  appear- 
ed by  their  counsel,  and  objected  to  a  summary  judgment,  for 
that,  they  had  a  i-ight  to  enter  pleas  and  have  them  submitted 
to  a  jury.  It  appearing,  that,  by  a  special  Act  of  Assembly, 
•applicable  to  Kichinond  county,  no  jury  trials  could  be  had 
in  the  count)^  of  Richmond  ;  the  Court  over-ruled  the  defen- 
'dants  objection,  and  gave  judgment  for  the  plaintiff,  (defen- 
dant in  error.)  This  was  the  matter  assigned,  on  the' hearing 
of  the  writ  of  error,  and  his  Honor  held-,  there  was  error  in 
the  Court  below,  in  this  particular — and  adjudged  that  the 
■defendant's,  (plaintiffs  in  error,)  have  leave  to  enter  the  pleas, 
"General  issue,  payment,  &c.,"  in  that  Court.  From  which 
the  plaintiff,  (defendant  in  error,)  appealed  to  this  Court, 

Leitcli^  Jbowle^  MoDoiiald  and  Blue,  for  the  plaintiffs  (in 

error.) 
Strange  and  R.  H.  Battle,  for  the  defendant  (in  error.) 

Pearson,  C.  J.  The  plaintiffs,  who  were  defendants  in  the 
County  Court,  there  insisted  "upon  a  right  to  plead,  and  have  a 
trial  by  jury,  in  which  the  Court  over-ruled  them,  and  render- 
ed judgment  on  the  bond." 

We  agree  with  his  Honor,  in  the  Court  below ;  there  is  er- 
I'or  in  the  proceedhig  of  the  County  Court.  The  statute  au- 
thorises judgment  to  be  entered  upon  motion  in  a  summary 
manner,  without  a  wiit  or  declaration,  or  other  formal  plead- 
ings— so  as  to  avoid  the  dela^'',  incident  to  ordinary  jury  trials, 
but  it  was  not  the  intention  to  deprive  the  defendant  in  the 
county  court,  of  his  right  to  put  at  issue  any  matter  of  fact, 
to  wit:  the  execution  of  the  bond,  the  amount  received  by 
the  sheriff,  the  amount  which  he  may  have  paid  over,  and  the 
balance  due,  and  have  these  matters  of  fact  tried  by  a  jury. 

As  the  County  Court,  for  the  county  of  Richmond,  under  a 


DECEMBER  TERM,  1860.  93 

Buchanan  v.   McKenzie. 

statute,  applicable  to  that  county,  had  no  power  to  institute  a 
trial  by  jury,  the  proper  course  was,  to  have  the  case  trans- 
mitted up  to  the  Superior  Court,  for  the  trial  of  issues  of  fact, 
and  it  was  manifest  error  to  refuse  to  allow  such  issues  to  be 
made.  In  other  words,  the  fact  that  the  County  Court  of 
Richmond  cannot  hold  jury  trials,  does  not  deprive  a  party  of 
his  common  law  right  to  have  issues  of  fact  tried  by  a  jury; 
Whitley  v.  Gaylord,  3  Jones,  2SG. 

But  we  do  not  concur  in  the  judgment,  which  his  Honor 
rendered.  After  reversing  the  judgment  of  the  County  Court, 
he  gives  leave  for  the  plaintiffs  in  error,  to  enter  their  pleas. 
There  is  no  precedent  for  this  mode  of  proceeding  in  a  writ  of 
error,  and  his  Honor  was  misled  by  treating  it  as  an  appeal, 
which  brought  up  the  whole  case ;  such  is  not  the  effect  of  a 
writ  of  error;  its  office  is  merely  to  present,  for  review,  errors 
of  law,  appearing  on  the  face  of  the  record,  to  have  the  judg- 
ment reversed,  and  the  party  restored  to  all  things  which  he 
has  lost  by  occasion  of  such  erroneous  judgment,  and  the  pro- 
ceedings thereon ;  Jmiues  v.  Cesar ^  2  Saun.  Rep.,  lOlz  (in 
note.) 

There  should  be  judgment  to  that  effect. 

Per  Curiam,  Judgment  reversed. 


WILLIAM  BUCHANAN    {plaintiff  in  error)  v.  B.  B.  McKENZIE    {de- 
fendant in  error.) 

A  judgment,  for  the  penalty  authorised  by  (lie  latter  clause  of  the  5th  sec.  of 
29tli  ch.,  of  the  Rev.  Code,  against  a  delinquent  sherifl",  &c.,  is  only  an  in- 
cident to  the  main  judgment,  against  him  and  his  sureties,  authorised  by 
the  former  part  of  the  same  section ;  upon  a  reversal,  therefore,  of  the 
latter,  the  former  falls  with  it. 

Wurr  OF  EROR,  before  Saunders,  J.,  at  the  Special  Term, 
June,  1860,  of  Richmond  Superior  Court. 


94  m  THE  SUPREME  COURT. 

Buchanan  v.  McKenzie. 

The  error,  assigned  in  this  case,  was  the  granting  of  judg- 
ment of  $100,  by  the  County  Court  of  Richmond,  against  the 
sheriff.  Under  the  provision  of  statute,  ch.  29,  sec.  5,  which, 
after  autliorizing  a  suuimar}'-  judgment  against  a  delinquent 
slieriflp,  clerk,  &c.,  and  their  sureties,  to  be  had,  on  motion,  for 
the  amount  of  public  money  due  from  such  delinquent  offi- 
cer, provides,  that  "every  sheriff,  clerk  and  master,  and  clerk 
aforesaid,  against  whom  judgment  is  so  rendered,  over  and 
above  all  arrearages,  shall  forfeit  and  pay,  the  sum  of  one  hun- 
dred dollars,  to  be  recovered  at  the  same  time,  for  the  use  of 
the  county."  The  judgment  in  the  preceding  case  (ante  91) 
having  been  entered,  as  therein  exj^lained,  this  motion,  for  the 
penalty,  was  made,  and  judgment  for  the  same  was  entered 
by  said  Court. 

The  Court  below  adjudged,  that  there  was  no  error  in  the 
records  of  the  County  Court,  and  ordered  a  procedendo,  to 
have  execution  issued  on  the  judgment  in  said  Court,  from 
which  the  plaintiff,  in  error,  appealed  to  this  Court. 

Leitch,  Fowle,  Blue  and  McDonald,  for  the  plaintiffs. 
Strange  and  JR.  II.  Battle.^  for  the  defendants. 

Peakson,  C.  J.  As  the  judgment  against  a  delinquent 
sheriff,  for  the  forfeiture  of  $100,  is  a  mere  corollary  or  inci- 
dent to  the  judgment  against  him  and  his  sureties  for  dama- 
ages,  it  follows,  that  if  the  principal  judgment  be  erroneous, 
the  latter  must  be  so,  also ;  and  if  the  principal  be  reversed, 
and  held  for  naught,  so  must  the  incident ;  on  the  ground  that 
the  delinquency  of  the  sheriff,  on  which  the  latter  judgment 
is  predicated,  has  not  been  established. 

There  is  error  in  the  judgment  of  the  Superior  Court,  and 
■  the  same  is  reversed.  There  is  error  in  the  judgment  of  the 
County  Courtjand  there  will  be  judgment  reversing  the  same 
and  restoring  the  plaintiff  in  error,  to  all  things  which  he  has 
lost  b}''  occasion  of  said  erroneous  judgment  and  the  proceed- 
ings thereon;  3  Saun.  Rep.  101  z  (in  note);  2  Bacon's 
Abrdgt.  229. 

Pee  Cueiam,  Judgment  reversedj 


DECEMBER  TERM,  1860.  95 


Buchanan  v.  McKenzie. 


WILLIAM    BUCHANAN    {plaintiff  in  error)  v.  B.  B.  McKENZIE  {de- 
fendant in  error.) 

The  statute,  Revised  Code,  chap.  29,  sec.  6,  intends  that  motions  for  sunmia- 
ry  judgment  against  delinquent  sheriffs,  &c.,  shall  originate  in  the  coimty 
courts. 

Where  a  statute  requires  that  a  proceeding  shall  originate  in  the  county 
courts,  and  matters  of  fact  are  involved  therein,  which  cannot  be  tried  in  the 
county  court,  because  jurisdiction,  to  tiy  issues  of  fact  has  been  taken 
away  by  special  act  of  Assembly,  the  propei-  course  is  for  the  issues  to  be 
made  up  in  the  county  court  and  transmitted,  by  an  order,  or  by  a  certio- 
rari, to  the  superior  court  lor  trial. 

Weit  of  ekkok,  before  Saundeks,  J.,  at  a  Special  Term, 
(June,  ISOO,)  of  Richmond  ISnperior  Conrt. 

The  niatler  assigned  for  error  in  this  case,  is  the  same  as  in 
the  case  between  the  same  parties,  (ante  91,)  except  that  in  this 
case,  the  record  does  not  show  that  the  defendants  below,  mov 
ed  in  the  Count}'  Court,  to  be  allowed  to  enter  pleas  and  have 
the  same  transmitted  to  ilie  Superior  Court  for  trial. 

The  Superior  Court  decided  that  there  was  no  error  in  the 
judgment  of  the  County  Court,  and  ordered  a  procedendo, 
from  which  the  plaintiff,  in  error,  appealed  to  this  Court. 

In  this  Court,  it  was  insisted  that  the  provision  in  5th  sec- 
tion of  chapter  29,  Revised  Code,  requiring  the  count}'  trus- 
tee to  move  for  judgment  "  at  the  first  conrt,  held  for  his 
county,  after  the  first  day  of  January  in  eacli  and  every  year,*' 
meant  the  first  court  having  jurisdiction  o^  the  subject-mat- 
ter, and  as  this  proceeding  involved  matters  of  fact,  and  jury 
trials  had  been  abolished  by  the  special  statute  for  Richmond 
county,  the  County  Court  had  no  jurisdiction,  and  the  judg- 
ment therein  entered  is  void. 

Leitcli^  Bliie^  Fowle  and  McDomdd^  for  jdaintitf  (in  error.) 
Stramje  and  R.  II.  Battle^  for  defendant  (in  error.) 

Pearson,  C.  J.     In  this  cause,  the  plaintiffs,  who  were  de- 
fendants in  the  County  Court,  so  far  as  the  record  shows,  did 
I 


96  IN  THE  SUPREME  COURT. 


Biiclianan  v.   McKenzie. 


not  move  to  be  allowed  to  enter  pleas,  or  to  make  np  issues 
of  fact  to  be  tried  by  a  jnr}-;  it,  therefore,  diffei'S  from  the  case 
between  the  same  ])arties,  in  which  an  opinion  is  filed  at  this 
term,  (ante  91).  The  only  question  ])rcsented  is,  as  to  the 
jurisdiction  of  the  County  Court  of  Richmond. 

For  the  jmrpose  of  this  question,  it  may  be  conceded  that 
a  motion  apiinst  the  sheriff  and  his  sureties,  on  his  bond, 
stands  on  the  same  footing  as  an  action  on  the  bond,  the  only 
difference  being  that  t])e  pi'oceedings  on  the  motion  arc  to  be 
summary — the  wi-it,  declai-ation  and  formal  mode  of  proceed- 
ing, being  dispensed  with,  to  avoid  nnnecessary  delay.  So, 
the  question  turns  on  the  construction  of  the  statute,  chapter 
29,  tcction  5. 

It  is  contended  for  the  ])laintifls,  in  ci-ror,  that  by  this  stat- 
ute, the  motion  is  to  be  made  by  the  trustee,  at  the  first  court 
(having  jurisdiction)  held  for  his  county,  after  the  fii'st  da}'  of 
January  in  every  year  ;  that  as  jurisdiction  is  taken  from  the 
Count}'  Court  of  Richmond  by  an  act,  relating  to  that  county, 
passed  in  1S14,  in  all  cases  where  ajuiy  may  be  necessary,  it 
follows  that  the  County  Court  could  not  entertain  the  motion, 
and  the  judgment  is  void  for  the  want  of  jurisdiction. 

We  do  not  concur  with  the  counsel  as  to  the  construction 
of  the  statute.  Taken  in  connection  with  the  other  sections, 
it  is  evident  that  the  statute  intended  that  all  of  these  mat- 
ters, in  respect  to  the  county  revenue,  should  be  instituted  in 
the  county  courts  ;  by  section  1,  the  justices  of  the  county 
court  ai'c  to  appoint  a  county  trustee  ;  l)y  section  5,  the  trus- 
tee is  to  make  a  motion  against  the  sheriff,  at  the  first  court 
held  tor  his  county,  after,  tV:c.  ;  by  section  0,  the  trustee  shall 
settle,  c*v:c. ;  where  there  is  no  tiustee,  the  court  shall  settle 
with  their  sheriffs  &c.  ;  by  section  7,  the  court  of  pleas  and 
quai'ter  sessions  shall  allow  the  ti'ustee  ieasonai)le  pay,  etc., 
and  by  section  8,  at  the  jirat  court  which  shall  be  held  after 
the  first  day  of  June  in  every  year,  the  trustee  shall  make  set- 
tlement with  the  courts  6zq.  The  whole  shows  that  the  court 
meant,  is  the  county  court,  and  the  5th  section  shows  "  the 
motion  shall  be  made  by  the  county  trustee  at  th^e  first  term 

I 


DECEMBER  TEEM,  1860.  ^7 

McDaniel  v.  Nethercat. 

of  Staid  coni't,  wliicli  shall  be- licld  for  his  county,  after,  ifee. 
It  is  clear,  we  tliiiik,  that  the  inoti<)n  must  be  made  in  the 
county  court.  Butit  is  asked,  what  is. to  be  done  in  those  coun- 
ties where  the  county  court  cannot  try  jury  cases,  and  no  jury 
is  in  attendance?  The  reply  is  obvious:  wherever  issues  of 
fact  are  made  up,  the  case  must  be  transmitted  to  the  superi- 
or courts,  as  in  the  case  of  the  probate  of  wills,  or  after  issues 
are  made  up  on  proceedings  under  a  ca.  sa.,  or  in  a  bastardy 
case;  the  principle  being  that  where,  by  law,  a  matter  is  to  orio-. 
inate  in  the  county  court,  that  court  has  exclusive  jurisdiction 
in  the  first  instance,  notwithstanding  its  jurisdiction  for  trying 
issues  of  foct,  is  taken  away  by  statute,  and  it  is  only  after  issues 
of  fact  are  made  up,  that  the  case  is  to  be  transmitted  to  the 
superior  court  l)y  order  of  the  county  court,  or  by  certiorari. 
See  the  case  of  Harris  v.  Ilaiivptoii^  7  Jones,  597,  in  which 
State  V.  Shfder,  8  Ire.  4S7,  and  J'ljx  v.  Wood,  11  Ire.  213,  are 
referred  to,  and  the  question,  in  regard  to  non-jury  county 
courts,  is  fully  explained.     Tiiere  is  no  error. 

Per  CuKr.^^Ar,  Judgment  affirmed. 


FARNIFOLD  L.  McDANIEL  v.  JOHN.  H.  NETHJ^CUT. 

Whose  a  constable,  by  levy  and  actual  seizure  of  a  slave,  had  acquired  a  right 
to  the  property  for  the  satisfaction  of  executions  in  his  hands,  and  delivered 
such  slave  to  the  jailor  of  tlie  county  for  safe-keeping,  a  refusal  of  the  jailor 
to  re-deliver  tlie  said  slave,  by  command  of  his  superior,  the  sheriff,  wa3 
Ilehi,  in  an  action  of  trover  by  the  constable,  against jLhe  sheriff,  to  be  evi- 
dence of  a  conversion. 

Action  of  troveu,  for  the  conversion  of  a  slave,  tried  be- 
fore Bailkv,  J.,  at  the  last  Fall  Term  of  Jones  Superior 
C'ourt. 

The  plaintiff  was  a  constable  of  Jones  county,  and  by  vir- 


98  EST  THE  SUPEEME  COURT. 

McDaniel  v.  Nethercut. 

tue  of  certain  executions  in  his  hands,  levied  one  of  them,  on 
the  4th  of  September,  1859,  and  one  other  on  the  12th  of  the 
same  month,  on  a  female  slave,  as  the  property  of  one  An- 
drews, and  delivered  her  to  the  jailor  of  the  county,  who  put 
her  in  the  common  jail  of  the  said  county.  Afterwards,  and 
before  this  suit  was  brought,  McDaniel,  the  plaintiff,  called 
on  the  jailor  for  the  slave  in  question,  and  he  refused  to  de- 
liver her.  It  appeared  in  evidence,  that  tliis  refusal  was  oc- 
casioned by  the  command  of  the  defendant,  who  was,  at  that 
time,  sheriff  of  Jones  county.  The  defendant,  as  sheriff,  had 
certain  executions  in  his  hands,  tested  of  June  Term,  1859,  of 
Jones  county  court,  against  one  Wm.  F.  Huggins,  which  were 
levied  on  12th  of  September,  1859,  on  the  said  slave,  and  he 
had  various  court  executions,  against  Andrews,  tested  of  the 
same  term,  but  none  of  them  levied  on  the  slave.  The  de- 
fendant showed,  in  evidence,  a  bill  of  sale  from  Andrews  to 
said  Huggins  and  one  Smith,  dated  in  1856,  which  was  abso- 
lute on  its  face,  but  was  intended  as  an  indemnity  to  Huggins 
and  Smith,  as  surety  for  said  Andrews  in  certain  debts  which 
had  been  subsequently  paid  by  Andrews,  and  said  bill  of  sale 
was  not  intended  to  defraud  any  one.  The  defendant,  under 
the  executions  in  his  hands,  sold  the  slave  in  question,  the 
plaintiff'  being  present,  forbidding  the  sale.  The  writ  was 
brought  after  the  demand,  but  before  the  sale. 

The  Court  charged  the  jury,  that  the  plaintiff  having  levied 
•lis  execution  first,  and  having  the  negro  in  his  possession,  was 
entitled  to  recover,  provided  there  was  a  conversion  on  the 
part  of  the  defendant,  and  that  there  was  evidence  as  to  a 
conversion,  which  was  left  to  their  consideration.  He  also 
charged,  that  the  sale  to  Huggins  and  Smith,  by  bill  of  sale, 
absolute  on  its  face,  but  intended  as  a  mortgage,  was  null  and 
7oid  as  to  the  plaintiff.     Defendant's  counsel  excepted. 

Verdict  and  judgment  for  plaintiff,  for  $1000. 

Defendant  appealed  to  this  Court. 

McRae^  for  the  plaintiff. 
Haughton,  for  the  defendant. 


DECEMBER  TERM,  1860. 


McDaniel  v.  Nethercut 


Battle,  J.  In  the  argument  here  it  is  conceded,  and  pro- 
perly conceded,  by  the  defendant's  counsel,  that  the  plaintiff 
had,  by  his  levy  and  taking  possession  of  the  slave,  acquired 
the  right  to  her,  for  the  purposes  of  his  execution,  as  against 
the  defendant;  see  Jojies  v.  JucR'ins^  -i  Dev.  and  Bat.  Rep., 
45i.  The  counsel  properly  conceded  also,  that  the  bill  of  sale 
from  Andrews  to  Huggins  and  Smith,  was  void,  as  against  the 
plaintiff,  {Gregory  v.  PcrMns,  4  Dev.  Rep.,  50,)  but  he  con- 
tended that  the  plaintiff's  action  could  not  be  sustained,  be- 
cause there  was  no  evidence  of  a  conversion  of  the  slave  by 
the  defendant.  In  support  of  this  position,  the  counsel  refer- 
red to  several  cases,  to  show  that  a  mere  levy  upon  a  perso- 
nal chattel,  without  a  seizure  of  it,  is  not  a  trespass,  and,  there- 
fore, is  neither  a  conversion  nor  any  evidence  of  it;  see  Bland 
V.  Whitjield,  1  Jones,  122 ;  Ragsdale  v.  Williams,  8  Ired., 
498;  Francis  v.  Welch,  11  Ired.,  215;  Glover  v.  Riddich^ 
Ibid,  582. 

This  may  all' be  true,  but  the  defendant,  in  the  present  case, 
did  much  more.  The  jailor  of  his  county,  who  is  his  officer, 
and  into  whose  possession  the  plaintiff  had  placed  the  slave 
to  keep  for  him,  refused,  upon  demand,  to  deliver  her  to  the 
plaintiff,  and  did  this  by  the  order  of  the  defendant.  The  re- 
fusal was,  then,  in  legal  effect,  the  refusal  of  the  defendant 
himself;  and  a  demand  and  refusal  has  always  been  consider- 
ed as  evidence  of  a  conversion  ;  and  if  unexplained,  a  con- 
version may,  and  ought  to  be  inferred  by  a  jury,  from  them. 
The  subsequent  sale  of  the  slave,  by  the  defendant,  as  sheriff, 
having  been  made  after  the  commencement  of  the  suit,  could 
not  bo  relied  on  as  the  ground  of  the  action,  but  it  was  pro- 
per vo  be  considered  as  evidence,  tending  to  show  the  purpose 
for  which  the  refusal  was  made  by  the  sheriff's  officer. 

The  question  of  damages  was  not  made,  (so  far  as  the  tran- 
scrii^t  shows,)  in  the  Court  below  ;  and,  tliere  is  nothing  stated 
from  which  we  can  discover,  that  the  amount  of  the  execu- 
tions, in  the  hands  of  the  plaintiff,  W<1s  not  the  full  value  of 
the  slave. 

Pi;u  Curiam,  Judgment  affirmed. 


100  m  THE  SUPREME  COURT. 


Bland  v.  Scott. 


JOSEPH  BLAND  ei  cd,  AdmWs.,  v.  JOHN  W.  SCOTT. 

Where  the  plaintiff,  the  defendant  and  another,  shipped  produce  on  the  same  boat, 
consigned  it  to  a  factor,  who  sent  the  defendant  a  draft  on  New  York  for 
the  whole  amount,  which  he  sold,  and  receiving  the  money  for  it,  endorsed 
it  in  his  own  name,  but  the  paper  coming  back  to  him  dishonored,  the  de- 
fendant refunded  the  money,  and  was  unable  to  get  it  from  the  factor,  after 
using  due  and  proper  diligence,  it  avus  Held  that  the  defendant  was  in  no 
wise  liable  for  the  loss  of  the  debt. 

Action  on  the  case,  tried  before  Saunders,  J.,  at  the  Fall 
Term,  1860,  of  Chatham  Superior  Court. 

The  following  statement,  signed  b}^  counsel,  was  sent  to  this 
Court  as  the  case  tried  below,  viz: 

"The  evidence  was  as  follows:  William  Bland,  the  plain- 
tiff's intestate,  through  the  defendant,  who  acted  without 
commissions,  shipped  from  Haywood  to  Wilmington,  in  Feb- 
ruary, 1857,  a  lot  of  cotton,  worth  §290.  At  the  same  time 
the  defendant  shipped,  in  tlie  same  way,  produce  for  himself 
and  for  Elias  Bryan.  J.  S.  Banks  was  the  consignee  of  this 
produce,  and  by  direction  of  the  plaintiff's  intestate,  the  cot- 
ton also  was  forwarded  to  him.  In  March,  1857,  Banks  re- 
mitted to  the  defendant  a  draft  on  a  house  in  New  York  for 
$750,  which  having  been  sold  for.  the  money,  and  endorsed  by 
Scott  to  one  Lambeth,  was,  on  due  presentment,  dishonored 
and  returned  through  Lambeth  and  Scott  to  Banks.  By  agree- 
ment between  Banks,  Lambeth  and  the  defendant,  a  second 
draft,  given  in  substitution  of  the  first,  was  made  payable  di- 
rectly to  Lambeth.  Upon  this,  only  §363,08  was  received  of 
the  drawees,  the  draft  liaving  been  duly  dishonored  for  the 
rest.  Lambeth  on  having  the  second  draft  returned  to  liim, 
carried  it  to  Scott  and  demanded  of  him  the  difference  be- 
tween the  $750,  for  which  it  called,  and  the  $363,08,  which 
he  had  received  upon  it.  Scott  paid  it  with  (among  other 
money)  $290,  which  he  produced  in  a  roll  from  his  pocket, 
saying,  "  this  is  Bland's  money  for  his  produce,  I  have  alrea- 
dy paid  Elias  Bryan  more  than  his  share."  It  was  shown 
that  the  draft  for  $750,  was  remitted,  in  part,  for  the  purpose 


I 


DECEMBER  TERM,  1860.  101 

Bland  v.  Scott 

of  paj'ing  off  the  debt  to  Bryan  and  that  to  Bland.  It  was 
also  shown  tliat  the  debt  to  Biyan  M-as  $396,96,  and  that  he 
received  it  of  Scott  on  the  20th  of  March,  1857.  The  follow- 
ing is  a  copy  of  the  second  draft,  which  was  produced  by  the 
defendant  at  the  trial : 

''Wilmington,  K  C,  April  18th,  185T. 

"  $750.  Ten  days  after  date,  acceptance  waived.  Please 
pay  to  the  order  of  A.  T.  Lambeth,  Es(jnire,  seven  hundred 
jind  fifty  dollars  for  value  received  ;  which  please  charge  to 
the  account  of  your  ob't  serv't,  J.  S.  Banks." 

To  Messrs.  B.  B.  Blossom  and  Son,  iSTew  York. 
Upon  this,  were  the  following  endorsements  :  "A.  T.  Lam- 
beth." "  Money  i^ceived  on  acp.  §353,08  of  the  within  debt." 
*'  Pay  the  balance  to  the  order  of  J.   W.  Scott— A.  T.   Lam- 
beth."    Just  after  the  second  draft  was  returned,  Banks  fail- 
ed, and  it  did  not  appear  that  any  thing  further  was  ever  re- 
ceived by  Scott  for  the  cotton,  except  some  salt  and  a  safe. 
After  Banks  tailed,   upon  Scott's  being  about  to   visit  Wil- 
mington, Bland  desired   him  to   try  and  save  something  for 
him.     AVhether  this  M-as  done,  did  not  appear.     It  was  shown 
that  afterwards  the  defendant  received   of  Banks  the  lot   of 
salt  and  a  safe  above  mentioned,  a  part  of  which,  lie  offered 
to  Bland,  who   refused   it.     It   appears   also,  that  Scott  and 
Bryan,  each,  lost  several  hundred  dollars   by  Banks.     The 
plaintiff  showed  a  demand  on  Scott,  for  the  value  of  the  cot- 
ton, a  short  time  before  the  suit   was  brought,  and  that  the 
latter  refused  to  pay,  saying,  that  as  he  had  failed  to  receive 
the  money  from  Banks,  it  would  be  hard  for  him  to  have  to 
pay  it." 

His  Honor  charged  the  jury,  that  upon  the  evidence,  they 
should  find  a  verdict  for  the  plaintiff  for  ^290,  with  interest 
from  the  the  1st  of  April,  1857. 

Verdict  and  judgment  for  plaintiff.     Appeal  by  defendaut, 

IJowze,  for  the  plaintiff. 
Phillijys,  for  the  defendant. 


102  m  THE  SUFEEME  COUET. 

Bland  v.  Scott. 

Manly,  J.  After  digesting  as  well  as  we  can  the  facts  of 
this  case,  we  are  unable  to  perceive  the  ground  on  which  the 
defendant  was  held  liable  for  the  value  of  Bland's  produce.  It 
seems  that  Wm.  Bland,  the  intestate  of  plaintiffs,  the  defend- 
ant, Scott,  and  a  person  by  the  name  of  Bryan,  sent  produce 
down  the  Cape  Fear  river  on  the  same  boat.  The  defendant, 
in  putting  the  freight  on  board  at  Haywood,  the  place  of  de- 
parture, acted  as  the  agent  of  Bland.  The  produce  M^as  con- 
signed, by  the  agreement  of  all  concerned,  to  J.  S.  Banks,  of 
Wilmington,  as  a  factor,  to  dispose  of  it  for  the  benefit  of  each 
consignor.  The  produce  was  transmitted  in  February,  and  in 
the  month  of  March,  a  draft  on  B.  B.  Blossom  and  Son,  of 
New  York,  was  sent  to  Scott  for  the  entire  proceeds.  This 
draft  was  discounted  by  A.  T.  Lambeth,  at  the  instance  of 
Scott,  and  on  the  20th  of  March,  Bryan's  proportion  of  it  was 
paid  to  him  by  Scott,  viz.,  $396,96.  The  draft  was  dishonor- 
ed and  returned,  and  an  arrangement  was  then  made  by 
Banks  with  Scott  and  Lambeth,  to  draw  again  for  the  amount 
of  $750,  on  the  same  house  in  New  York  in  favor  of  Lam- 
beth, which  was  accordingly  done,  and  on  this  draft  $353,08 
was  received  by  Lambeth.  It  seems  that  Scott  then  refund- 
ed to  Lambeth  the  proceeds  of  the  draft  less  the  $353,08 
received  on  the  same,  saying,  as  he  produced  a  part  of  the 
money,  viz.,  $290,  that  it  was  Bland's  money. 

Thus,  it  will  be  seen,  that  of  the  common  adventurers  in 
this  enterprise,  Bryan  has  received  the  proceeds  of  his. pro- 
duce ;  Bland  has  not  received  any  thing,  and  Scott, 
the  defendant,  has  not  only  not  received  any  thing,  but  has 
suffered  a  loss  over  and  above  of  $43,88,  except  he  derive  some 
indemnity  from  the  salt  and  safe  referred  to  in  the  evidence. 

The  case  states  tliat  Scott  acted  as  the  agent  of  Bland  in 
starting  the  produce  to  Banks,  but  after  that,  it  is  not  stated 
that  he  was  to  be  responsible.  Banks  is  the  consignee  and 
factor,  alike  of  all,  and  upon  the  delivery  of  the  produce  he 
became  responsible  to  each.  That  is  our  conclusion  on  the 
state  of  the  facts  presented  to  us  in  the  record. 

The  question,  then,  is,  did  the  defendant's  interference  in  the 


DECEMBER  TERM,  1860.  103 

Bland  v.  Scott. 

matter,  as  a  volunteer  in  respect  to  Bland  and  Brj^an,  with- 
out any  interest  in  the  transactions,  except  to  the  extent  of 
his  part  of  the  proceeds  of  sale,  make  him  responsible  to  the 
others  ?     We  think  not. 

If  it  be  assumed  that,  having  accepted  a  bill,  payable  to 
himself  for  the  whole  proceeds,  and  having  attempted  its  col- 
lection, he  has  made  himself  liable  for  ordinary  care  and  dil- 
igence, we  think  these  have  been  exerted.  It  is  clear,  the 
defendant  is  not  at  all  liable  for  the  delinqucnces  or  want  of 
fidelity  in  Banks.  The  latter  was  as  much  the  factor  of  the 
plaintiff  as  of  the  defendant,  and  the  latter  can  only  be  sub- 
jected to  responsibility  in  case  some  act  or  omission  on  his 
part,  in  relation  to  the  fund  sent  him,  was  contrary  to  the 
course  of  a  man  of  ordinary  prudence  in  the  management  of 
his  own  affairs.  What,  then,  is  his  conduct  in  this  respect? 
He  takes  the  draft  sent,  embracing  the  sum  due  himself  as 
well  as  the  suras  due  Bryan  and  Bland.  He  procures  it  to  be 
discounted  and  is  proceeding  to  distribute  the  proceeds,  when 
the  draft  is  returned  dishonored  by  the  drawee.  Another 
draft  is  then  taken  from  Banks,  and  upon  this  is  paid  $353,08. 
It  is  dishonored  as  to  the  balance.  Banks  fails,  and  the  de- 
fendant being  liable  upon  his  endorsement,  refunds  the  money 
in  hand,  arising  from  the  discount  of  the  bill.  By  reference 
to  the  dates  of  these  transactions,  it  will  be  perceived  that  all 
this  is  done  from  about  the  middle  of  March  to  the  middle  of 
April. 

It  seems  to  us,  after  the  false  step  of  consigning  to  an  un^ 
trustworthy  factor,  for  which  defendant  is  not  responsible, 
due  diligence  was  used  in  endeavoring  to  make  available  the 
fund  sent,  and  defendant  is  not  responsible  for  the  fiiilure. 

Upon  the  state  of  facts  reported,  therefore,  we  differ  from 
his  Honor  as  the  personal  responsibility  of  the  defendant  to 
make  good  the  loss.  What  may  be  the  rights  of  the  parties, 
respectively,  in  the  funds  actuallj^  received,  we  are  not  now 
called  upon  to  say.    There  should  be  a  venire  de  novo. 

Pee  Curiam,  Judgment  reversed. 


104  IN  THE  SUPEEME  COURT. 


Williams  v.  Shimnierhorn. 


BENJAMm  C.  WILLIAMS,  Adm'r.,  v.  URIAH  SCHIMMERHOR^. 

A  judgment  on  a  ca.  sa.  bond,  during-  the  term  at  wliieh  rt  is  rendered,  is  in 
fierij  and  may  be  set  aside  on  motion ;  and  an  appeal  from  the  County  to 
the  Superior  Court,  from  an  order  setting  aside  such  judgment,  is  erroneous, 
and  Avill  be  dismissed  on  motion. 

Appeal  from  the  Count}!'  Court,  on  a  motion  to  set  aside  a 
judgment,  before  Feench,  J.,  at  the  hiat  Fall  Term  of  Moore 
Superior  Court. 

The  defendant  had  given  a  bond  for  his  appearance  at  th^ 
July  Term,  1860,  of  Moore  County  Court,  to  take  the  benefit 
of  the  act  for  tlie  relief  of  insolvent  debtors.  iSTot  making 
his  appearance  in  the  fo)'enoon,  of  Monday  of  the  term,  he 
and  his  sureties  were  called,  and  judgment  Avas  rendered 
against  them,  for  the  amount  of  the  judgment  and  costs. 
Subsequently,  in  the  term  o>f  that  Court,  the  defendant  made 
an  afiidavit  that  he  was  sick,  and  unable  to  get  to  the  court- 
house on  Monday,  before  he  was  called.  On  this  affidavit, 
"the  Court  ordered  the  judgment  to  be  set  aside,  and  theplain- 
tiif  appealed  to  the  Superior  Court.  In  the  Superior  Court, 
his  Honor  deeming  that  the  plaintiff  had  no  right  to  appeal 
from  the  order  of  the  County  Court,  dismissed  it^  and  ordered 
a  procedendo,  from  which  plaintiff  appealed  to  this  Court. 

Neill  McKay  and  MoDugald^  for  the  plaintiff. 
■McDonald^  for  the  defendant. 

Peakson,  C.  J.  There  is  no  error;  the  proceedings  of  every 
court  are  said  to  be  in  fievi^  until  the  term  expires;  that  is, 
its  actions  are  not  considered,  in  law,  as  completed  or  done, 
but  as  being  held  in  suspense,  under  consideration,  until  the 
end  of  the  term,  consequentl}^,  the  County  Court  liad  i^oioer^ 
in  our  case,  to  set  aside  the  judgment.  Its  exercise  was  a 
mere  matter  of  discretion,  and  the  plaintiff  had  no  more 
ground  for  an  appeal,  than  he  would  have  had  from  an  order 
of  the  Court,  allowing  a  continuance. 


DECEMBER  TEP.M,  1860.  105 


Mendenhall  ■?>.  Parish. 


It  follows,  there  is  no  error  in  tlic  order  of  ti>c  Superior 
Court,  dismissing  the  appeal.  After  wliicli,  that  Court  could 
have  nothing  more  to  do  with  the  case,  and  &  j^rocedefido  \n-0' 
perlj  issued. 

Per  Curiam,  Judgment  affirmed. 


C.  r.  MENDENHALL,  d^-al  v.  THOMAS  C.  TARISH. 

An  acknowledgement  by  the  bargainor,  in  a  deed,  that  he  has  received  the 
consideration  nionej'',  is  a  bar  in  a  court  of  law,  to  any  action  for  the  re- 
covery thereof. 

This  was  an  action  of  assumpsit,  tried  before  Siikptieed,  J., 
at  a  Special  Term  (Januarj^,  1860)  of  Guilford  Superior 
Court. 

The  plaintiffs  were  the  owners  of  a  patent  right,  for  a  ma- 
chine, called  Elliott's  Corn-Slieller  and  Separator,  and  the  de- 
fendant wrote  to  them,  from  St.  Louis,  that  if  they  would 
send  him  a  deed  for  the  patent  in  question,  for  the  State  of 
Arkansas,  he  would  give  them  $600  in  three  months,  offering, 
in  the  mean  time,  to  give  them  a  note  and  security  for  that 
sum.  The  deed  was  accordingly  sent,  and  received  by  the 
defendant  in  due  season,  but  the  note  for  the  money  was  not 
sent,  nor  was  the  money  paid  at  the  end  of  the  credit  stipula- 
ted for. 

The  deed,  reciting  the  ])laintifts'  ownership  of  the  patent 
right  in  question,  proceeds  as  follows:  "Now,  know  all  men 
by  these  presents,  that  we.  the  said  Adams,  Iliatt  and  Men- 
denhall, for,  and  in  consideration  of  the  sum  of  six  hundred 
dollars,  to  us  in  hand  paid,  the  receipt  of  which  is  hereby  ac- 
knowledged, have  transferred,  sold,  etc."  The  release  here 
set  forth,  was  pleaded  and  relied  on  at  the  trial. 

By  consent,  a  verdict  was  entered  for  the  plaintiff  for  S600, 


106  m  TKE  SUPKEME  COURT. 

Mendenhall  v.  Parish. 

and  interest,  subject  to  the  opinion  of  the  Court,  on  the  ques- 
tion as  to  the  sufficiency  of  the  release.  His  Honor  after- 
wards, set  aside  the  verdict  and  ordered  a  nonsuit.  Plaintiff 
appealed. 

Morehead  and  McLean^  for  the  plaintiffs. 
Fowle  and  Gorrell^  for  the  defendant. 

Manly,  J.  This  is  an  action  of  assumpsit,  in  which  the 
plaintiff  alleges  a  liability  of  the  defendant  iipon  an  under- 
taking, that  he  would,  in  consideration  of  a  deed,  for  a  certain 
patent  riglit,  to  be  used  in  the  State  of  Arkansas,  pay  there- 
for $600,  at  three  months  credit,  and  make  a  good  note  for  it. 
The  declaration  is  in  two  counts. 

1.  For  not  making  the  note. 

2.  For  not  paying  the  money. 

The  case  turns  upon  the  effect  of  a  release,  pleaded  as  a  bar 
to  the  recovery,  and  which  is  found  in  the  deed^  for  the  right 
to  use  the  patent  above  referred  to,  and  dated  12th  of  Oct., 
1857.  We  concur  with  his  Honor,  that  the  release  in  the  deed 
is  a  bar  at  law,  to  the  plaintiffs  recovery  on  either  count.  In 
either  aspect,  it  is  an  action  for  the  consideration  expressed  in 
the  deed.  The  consideration  is  there  declared  to  be  paid,  and 
the  plaintiffs,  who  are  the  grantors  in  the  deed,  are  estopped 
to  deny  it  in  this  action. 

This  question  was  brought  directly  into  judgment  in  the 
case  of  Brotcket  v.  FosGue,  1  Hawks,  64,  and  it  was  there 
held,  that  when  a  deed  contains  an  acknowledgment  by  the 
bargainor,  of  the  reception  of  the  consideration  money,  with 
an  e-xoneration  therefrom,,  it  amounts  to  a  bar  to  the  action 
for  the  purchase-money,  and  that  parol  evidence  shall  not  be 
received  to  contradict  the  averment  of  payment  in  such  case.. 

The  same  principles  are  decided   in   the    case   of  Lowe   v.. 

Weatherby^  4  Dev.  and  Bat.,  212;  andareagaini-ecognisedin 

the  cases  of  Crawley  v.  Timherlake,  reported  in  1  Ired.  Eq.,. 

346,  and  2  do.,  460,  where  equity  takes  jurisdiction,  and  re- 


DECEMBER  TERM,  1860.  107 

Mendenball  v.  Parish. 

lieves  from  the  legal  effect  of  such  release  upon  a  case,  made, 
of  ignorance  and  misapprehension. 

Our  attention  has  been  caWed  to  the  case  of  Hohbins  v.  Zove, 
3  Hawks,  82;  andZane  v.  Wingate^  3  Ired.,  326.  There  is  no 
conflict,  as  we  think,  between  these  cases  and  tlie  cases  of 
Brocket  v.  Foscue^  and  Loxoe  v.  Weaiherhy. 

The  first,  Eohhins  v.  Love^  was  an  action  of  assumpsit,  for 
a  balance  of  $1000,  due  for  merchandise  sold.  The  defen- 
dant was  permitted  to  introduce  a  deed  for  a  house  and  lot, 
in  which  the  consideration  was  stated  to  be  $1000,  in  hand 
paid,  and  to  prove  b}^  the  subscribing  witness,  that  it  was  paid 
by  an  agreement  to  consider  the  debt  for  the  goods,  extin- 
guished. This  was  held,  not  to  be  a  contradiction  of  the  deed, 
but  proof  of  a  distinct  fact  onl}',  as  to  how  the  money  came, 
which  the  defendant  acknowledges  the  reception  of,  in  his 
deed  to  the  plaintifi".  Thus,  without  contradicting  his  deed, 
the  defendant  was  enabled  to  show  distinct  facts,  which 
amounted  to  an  accord  and  satisfaction,  and  which  furnished, 
of  course,  a  complete  answer  to  the  plaintiffs  action  of  as- 
sumpsit. 

The  other  case.  Lane  v.  Wmgate,  was  an  action  of  assump- 
sit, also,  upon  a  parol  obligation,  not  under  seal,  with  condi- 
tion for  the  support  of  an  aged  woman  slave.  No  considera- 
tion was  stated  in  the  writing,  and  the  plaintiff  resorted  to 
evidence  dehors  the  instrument,  and  showed  upon  a  sale  of 
negroes  by  plaintiff  to  defendant,  he  wished  to  purchase,  be- 
sides those  the  plaintiff  was  willing  to  sell,  a  boy  by  the  name 
of  Daniel.  Plaintiff's  objection  to  the  sale  of  Daniel  was,  that  he 
wanted  him  to  wait  on  the  old  woman  referred  to  in  the  condition 
of  the  obligation.  And  thereupon,  the  defendant  agreed,  if  the 
plaintiff  would  sell  him,  Daniel,  he  would  maintain  the  wo- 
man for  life,  and  accordingly  entered  into  the  obligation  on 
which  the  action  was  brought.  Defendant,  in  answer  to  the 
action,  introduced  the  deed  of  sale  for  Daniel  and  other  slaves, 
in  which  plaintiff  acknowledges,  that  he  had  received  a  sum 
in  full  for  the  said  negroes,  and  contended  that  plaintiff  was 
estopped,  by  the  said  deed,  from   recovering  under  the  said 


108  m  THE  SUPREME  COURT. 

Tomlinson  v.   Payne. 

agreement.  But  the  Court  held  otherwise,  npoii  the  gronnd, 
that  the  agreement  was  a  distinct  obligation,  growing  out  of 
the  sale  of  Daniel,  and  that  it  was  not  any  part  of  the  money 
consideration,  the  reception  of  which  was  acknowledged  in 
the  deed,  and  there  was,  therefore,  no  estoppel. 

Both  these  cases  were  put  upon  peculiar  grounds,  and  were 
not  supposed  by  the  learned  Judges,  who  then  presided  in 
the  Court,  to  impugn  at  all,  the  doctrine  of  estoppel  by  deed, 
and  cannot,  therefore,  be  rightfully  invoked  for  that  purpose. 

In  the  case  now  before  us,  the  action  is  for  the  recovery  of 
the  consideration  mentioned  in  the  deed,  the  purcliase-nioney 
of  the  patent.  For  we  do  not  perceive,  that  it  varies  the  mat- 
ter or  object  of  the  action,  wliether  tlie  recovery  be  had  upon 
the  count  for  $600,  the  price  of  the  patent,  which  was  to  be 
paid  after  three  months'  time,  or  for  the  $600  as  damages  for 
not  giving  a  good  note,  in  the  mean  time,  for  the  price  afore- 
said. It  is  equally  an  action  for  the  recovery  of  the  conside- 
ration money  of  the  deed,  and  this,  the  party  plaintiff  has  ac- 
knowledged by  his  deed  to  l»e  paid.  He  is  <;oncluded,  by  his 
acknowledgement,  under  seal. 

Pee  Cukiam.,  Judo^ment  affirmed. 


wrtlilAM  TOMLINSON  v.  JOSEPH  PAYNE. 

At  law,  the  rule  is,  that  n-aud  never  is  presumed,  and  he  who  alleges  it  must 

prove  it. 
It  may  be  taken  a?  a  general  proposition,  that  every  man  is  presumed  to  be 

honest  in  his  dealings,  until  the  contrary  is  proved. 

This  was  an  action  on  the  case  for  a  deceit  in  tlie  sale  of  a 
saw-mill,  tried  before  Batley,  J.,  at  the  last  Superior  Court  of 
Wilson  county. 

Tlie  defendant  being  a  ;part  owner  of  the  mill  in  question, 


DECEMBER  TEEM,  1860.  109 

Tomlinson  v.   Payne. 

sold  an  interest  therein  (one  third  part)  to  tlie  plaintiff  for 
$600.  The  plaintiff  said  of  the  mill,  before  he  bought  it,  that 
he  did  not  know  whether  it  was  a  good  one  or  otherwise. 
The  defendant  said  the  mill  was  a  good  one,  and  that  it 
had  no  deliciences  that  he  know  of.  There  was  evidence  also, 
that  the  property  was  as  the  defendant  represented  it  to  be. 

The  Judge,  in  charging  the  jury,  explained  to  them  the 
difference  l)etween  an  action  for  a  warranty  and  an  action  on 
the  case  for  a  deceit ;  that  in  the  former,  a  recovery  could  be 
effected  by  showing  a  breach  of  the  warranty  only,  and 
that,  whether  the  defendant  was  an  honest  man  or  otherwise, 
bnt  in  the  latter,  he  could  not  recover,  unless  it  was  sliown 
that  the  defendant  was  guilty  of  a  moral  fraud  ;  lluit  in  this 
case,  as  ihe  phiintiff"  had  declared  that  the  defendant  was 
guilty  of  practicing  a  fraud  upon  him  in  tiie  sale  of  the  mill, 
he  was  bound  to  prove  it;  that  the  burden  of  proof  was  upon 
him  to  establish  his  allegation  to  the  satisfaction  of  the  jury, 
for  the  law  presumed  that  every  one  was  honest  in  his  deal- 
ing, until  the  contrary  was  proved.     Plaintiff' excepted. 

Yerdict  and  judgment  for  the  defendant,  and  appeal  by 
the  plaintiff". 

Strong  and  A.  M.  Leiois^  for  the  plaintiff. 
Dortch  and  B.  F.  Moore,  for  the  defendant. 

Pearson,  C.  J.  His  Honor  very  properlj^  instructed  the 
jury,  that  as  the  plaintiff  alleged  the  defendant  had  practiced 
a  fraud  on  him,  he  (the  plaintitY)  was  bound  to  prove  the  alle- 
gation, and  if  he  had  failed  in  making  the  proof,  as  a  miitter 
of  course,  the  issue  should  be  found  against  him.  Here,  he 
might  have  stopped,  but  in  truth,  what  he  adds,  taken  in  con- 
nection with  the  preceding  sentence,  is  simply  the  expression, 
in  different  words,  of  the  same  idea,  to  wit,  that  the  burthen 
of  proof  was  on  the  plaintiff.  Fraud  is  presumed,  in  some  in- 
stances, b}'^  a  court  of  equity,  e.  g.,  where  one  deals  with  an- 
other, who  is  dependant  on  him   from    the    relation    existing 


ilO  IN  THE  SUPKEME  COURT. 

Toralinson  v.  Payne. 

between  them  ;  but  at  law,  the  rule  is,  fraud  is  never  presum- 
ed, and  he  who  alleges  fraud  must  prove  it. 

This  disposes  of  the  case ;  but,  as  an  isolated  proposition, 
we  take  it  to  be  true,  that  every  one  is  presumed  to  be  honest 
in  his  dealings,  until  the  contrary  is  proved  ;  in  the  same  sense, 
that  every  one  is  presumed  to  be  covi'pos  mentis  /  that  is,  we 
take  it  for  granted,  he  is  so,  until  the  contrary  is  proven  ;  for 
instance,  one  who  alleges  the  execution  of  a  deed  or  will,  im- 
pliedly alleges  that  the  maker  had  mental  capacity,  and  on 
proof  of  the  formal  execution  of  the  instrument,  the  capacity 
is  taken  for  granted,  in  the  absence  of  evidence  to  the  con- 
trary. It  is,  however,  unnecessary  to  enter  upon  this  ques- 
tion, as  it  is  a  mere  matter  of  speculation,  for  in  our  case,  the 
onus  of  })roof  being  on  the  plaintiff,  it  was  for  him  to  satisfy 
the  jury  that  a  fraud  had  been  practiced  by  the  defendant. 
There  certainly  is  no  presumption  of  law,  that  every  man  is 
dishonest  in  his  dealings,  until  the  contrary  is  proved,  and, 
without  the  aid  of  such  a  presumption,  the  plaintiff  could  not 
be  subjected  to  the  omis  prohandi,  which  is  the  principle  of  law 
that  governs  all  cases  where  the  evidence  does  not  prepon- 
derate on  the  one  side  or  the  other.     There  is  no  error. 

Per  Curiam,  judgment  affirmed. 


DECEMBER  TERM,  1860.  Ill 


Latta  V.  Russ. 


TJie  State  on  the  relation  of  W.  W.  LATTA,  Admr.  de  bonis  non  cum  tes.,  v. 
CHARLES  E.  RUSS,  Adm'r.,  et  al. 

Where  an  administrator  with  a  will  annexed  died,  having  in  his  hands  money 
arising  from  the  sale  of  land,  decreed  to  be  sold  for  the  payment  of  debts, 
being  a  surplus  over  and  above  the  sums  required  to  pay  such  debts,  which 
money  belonged,  by  law,  to  persons,  to  whom  the  land  was  devised,  it  was 
Held  ftiat  the  administrator  de  bonis  non  cum  ies.  an.  of  the  original  intes- 
tate, was  the  proper  person  to  bring  suit  for  such  money,  and  not  the  de- 
visees. 

Where  an  administrator  petitioned  for  the  sale  of  his  intestate's  land,  setting 
forth  the  number  and  amount  of  the  debts  existing  against  the  estate,  and 
a  decree  passed  for  such  sale,  in  a  suit  by  an  administrator- cZe  boni^  non,  to 
recover  a  surplus  over  and  above  the  debts,  such  decree  was  Held  not  to 
be  conclusive  as  to  such  debts,  although  the  persons,  to  whom  the  land 
was  devised,  were  made  parties. 

Moneys  paid  by  an  administrator  for  the  support  of  his  intestate's  minor  chil- 
dren, are  not  proper  vouchers  for  him  in  the  settlement  of  such  estate. 

This  was  an  action  of  debt,  on  an  admiuistration  bond,  tried 
before  Dick,  J.,  at  a  Special  Term,  June,  1860,  of  Orange 
Superior  Court. 

Richard  Crabtree  made  his  will,  by  which  he  devised  cer- 
tain lands  to  Thomas  J.  Latta  and  wife,  William  Hopkins  and 
wife,  William  Crabtree,  Moses  Crabtree,  Clement  Crabtree, 
John  Crabtree,  Richard  Crabtree,  Arthur  Crabtree,  Kemp 
Crabtree  and  Lucy  Ann  Crabtree,  the  last  six  of  whom  are 
minors.  He  devised  a  certain  other  tract  of  land  to  be  sold 
for  the  payment  of  debts,  and  that  the  rents,  issues  and 
profits  of  the  other  land  should  be  applied  to  the  support  of 
his  minor  children.  The  executors,  named  in  the  will,  hav- 
ing renounced  the  ofhce,  his  widow,  Parthenia  Crabtree,  was 
appointed  administratrix,  with  the  will  annexed,  and  gave  the 
bond,  on  which  this  suit  is  brought.  The  administratrix  filed 
petitions  in  the  County  Court  of  Orange,  to  which  the  devisees 
were  made  parties,  setting  forth  that  she  had  exhausted  all  the 
personal  estate,  and  that  there  remained  a  certain  amount  of 
debts  (stating  them)  nnpaid,  and  prayed  that  the  lands  devis- 
ed to  said  parties  shotild  be  sold  for  the  purpose  of  satisfying 


113  m  THE  SUPREME  COUET. 

Latta  V.  Riiss. 

these  debts.  Decrees  were  entered  accordingly,  and  tlie  debts 
nil  paid  out  of  the  proceeds  of  the  land.  Mrs.  Crabtree 
having  died,  this  suit  was  brought  by  the  plaintiff,  who 
was  appointed  administrator  de  honis  non,  M'itli  the  will  an- 
nexed, of  Richard  Crabtree,  and  her  administrator  was  made 
a  party  defendant  with  the  other  obligors,  her  sureties.  It  ap- 
pears by  the  report  of  Mr.  Laws,  to  whom  it  was  pferred 
to  state  an  account  ^of  Mrs.  Crabtree's  administration  of  her 
husband's  estate,  that  taking  the  amount  of  debts  to  be  as 
made  out  b}''  the  vouchers,  and  rejecting  charges  made  by  her 
for  supporting  the  minor  children,  there  remained  in  her 
liands  $SS2,22,  which  the  commissioner  thinks  is  the  true  bal- 
ance. But  he  says,  in  an  alternative  view  of  the  subject,  that 
if  these  charges  bo  allowed  against  the  children,  and  the  debts 
against  tlie  estate  be  taken  to  be  as  stated  in  the  decrees  for 
sale  of  land,  that  then,  thei'e  will  be  in  the  hands  of  the  ad- 
ministratrix, unadministered,  only  $252,45.  The  defendant's 
counsel  insisted  : 

1st.  That  as  the  act  of  Assembly  gives  the  surplus  arising' 
from  the  sale  of  land,  made  assets,  to  the  persons  wiio  would 
have  taken  the  land  itself,  had  it  not  been  sold,  the  devisees 
themselves  should  have  brought  the  suit  as  relators,  and  not 
the  administrator  cZe  honis  no7i  of  Richard  Crabtree. 

2nd.  That  the  decrees  by  whicli__^]ie  land  was  sold,  and  to 
which  the  devisees  were  parties,  concluded  them  as  to  the 
amount  of  the  debts  due  and  owing  by  Mr.  Crabtree's  estate. 

3rd.  Also  that  the  charges  for  supporting  the  minor  chil- 
dren wei'e  correct,  and  that,  therefore,  only  the  smaller  sum, 
above  mentioned,  could  be  recovered. 

By  the  consent  of  the  parties,  a  pro  forma  verdict  M-as  en- 
tered for  the  smaller  sum,  subject  to  be  set  aside  and  a  ver- 
dict and  judgment  entered  for  the  lai'ger  sum,  according  as 
his  Honor  should  be  of  opinion  on  the  points  of  law,  above 
stated,  in  the  2nd  and  3rd  positions  taken  by  the  defendants. 

On  consideration  of  the  questions  reserved,  his  Honor  be- 
ing of  opinion  with  the  defendants,  gave  judgment  for  the 
smaller  sum,  and  the  plaintiffs  appealed. 


DECEMBER  TERM,  1860.  113 

Latta  V.  Russ. 

Grahaniy  for  the  plaintifls. 

Nortoood  and  PhilUjys^  for  the  defendants. 

Pearson,  C.  J.  Tlie  objection  made  in  this  Court,  that 
the  action  cannot  be  maintained  by  tlie  administrator  rZt'  honi^ 
non  with  the  will  annexed  of  Richard  Crabtree,-and  should  have 
been  brought  on  the  relation  of  the  devisees,  is- not  tenable. 

In  respect  to  the  personal  estate^  it  is  settled,  that  if  an  ad- 
ministrator die  before  he  has  completed  the  settlement  of  the 
estate,  by  paying  debts  and  making  distribution,  an  adminis- 
trator de  honis  non  must  be  appointed  for  the  purpose  of  com- 
pleting the  settlement,  foi-  the  reason,  that  there  is  no  privity 
between  the  distributees  of  the  intestate  and  the  ])€rs0nal  rep- 
resentative of  tlie  deceased  administi-ator,  and,  consequently, 
both  of  the  deceased^  persons  must  be  represented  ;  Duhe  v. 
Ferrihct\  7  Jones,  10 ;  Taylor  v.  Brooks^  4  Dev.  and  Bat. 
130 ;  IS^tate  v.  JoJuison^  8  Ire.  381 ;  State  v..  Brltton,  11  Ire. 
110. 

The  statute  which  auihorises  the  sale  of  real  estate  o-n  the 
petition  of  an  executor  or  administrator  for  the  payment  of 
debts,  makes  the  proceeds  of  sale  assets  for  the  payment  of 
debts»  and  directs  that  the  excess  shall  be  paid  by  the  execu- 
tor or  administrator  to  such  persons  as  would  be  entitled  to 
the  land  had  it  not  been  sold  ;  Rev.  Code,  ch.  46,  see-.  50,  51. 
Thus  putting  the  excess  of  the  sale  of  real  estate  on  the  same 
footling,  in  respect  to  the  devisees  and  heirs^  and  imposing  on 
executors  and  administrators  the  same  duties  in  regard  there- 
to, as  existed  in  i-elation  ta  the  I'ights  of  legatees  and  distri- 
butees to  the  excess  of  the  personal  estate,  and  the  duties  ©■f 
executors  and  administrators  in  regard  thereto. 

When,  tiierefore,  an  admiiustrator  dies  before  he  has  com- 
pleted the  settlement  of  the  assets,  derived  from  real  estate, 
by  paying  debts  and  paying  over  the  excess  to  the  devisees 
or  heirs-at  law,- this  unfinished  duty  cannot  be  performed  by 
his  administrator,  for  there  is  no  privity  between  him  and  the 
devisees  and  heii-s-at-law,  and  it  is,  consequently,  necessary 
that  both  of  the  deceased  persons  should  be  represented,  so 

8 


114  m  THE  SUPEEME  COUET. 

Latta  V.  Russ. 

that  the  representative  of  the  administrator  should  pay  over 
the  fund  to  the  representative  of  the  iirst  intestate,  whose  du- 
ty it  is  made,  to  complete  the  administration  by  paying  off  all 
the  debts,  and  paying  over  the  excess  to  such  persons  as  would 
be  entitled  to  the  land,  had  it  not  been  sold.  In  other  words, 
between  the  administrator  de  bonis  non  of  the  lii'st  intestate 
^nd  his  creditors  and  devisees,  or  heirs,  there  is  a  privity  ; 
whereas,  there  is  no  privity  between  the  latter  and  the  admin- 
istrator of  the  first  administrator.  So,  the  action  is  properly 
brought  on  the  relation  of  the  representative  of  the  testator, 
Eichard  Crabtree,  and  it  is  his  dutj'  to  i-eceive  the  fund  and 
complete  the  settlement  of  the  estate. 

We  do  not  concur  with  his  Honor,  in  the  view  taken  by 
him  of  the  question  reserved,  in  respect  to  the  effect  of  the 
decree,  giving  tiie  administratrix  license  to  sell  the  land.  That 
decree  was  an  adjudication  that  it  was  necessary  to  sell,  and 
is  conclusive  in  favor  of  the  title  acquired  by  the  purchaser, 
but  it  is  not  conclusive  of  the  question  of  debt  or  no  debt,  as 
against,  or  in  favor  of  creditors,  or  as  against,  or  in  favor  of  the 
heirs.  It  is  certainly  not  so  in  respect  to  creditors,  because 
they  are  not  parties  to  the  proceeding,  and  is,  consequently,  not 
so  in  respect  to  the  heirs  or  devisees;  for  an  estoppel  must  be 
mutual.  To  make  it  so,  would  be  going  beyond  the  necessity 
of  the  case,  the  object  being  simply'  to  establish  prima  facie, 
that  the  personal  estate  is  not  sutiicient  to  pay  the  debts,  as  a 
foundation,  for  the  action  of  the  court,  in  granting  a  license 
to  sell  the  real  estate,  the  proceeds  of  which  are  made  assets, 
to  be  accounted  for  in  the  settlement  of  the  estate,  when  the 
executor  or  administrator  must,  as  a  rnatter  of  course,  dis- 
chary:e  himself,  by  the  production  o\'  j:? roper  vouchers. 

We  think  it  clear,  therefore,  that  in  making  tiie  settlement 
in  this  case,  it  was  the  duty  of  the  Court  to  go  behind  the  de- 
cree ullowing  the  administratrix  license  to  sell ;  and  it  is  like- 
wise clear,  that  her  charges,  for  the  support  of  the  minor 
children,  of  the  testator,  were  not  proper  vouchers.  They  were 
not  dt^bts  of  the  testator,  and  are  directed  to  be  paid  out  of  the 
ren's,  isssues,  and  profits  of  the  land.     The  fund  raised  by  such 


DECEMBER  TERM,  1860.  115 


Sharpe  v.  McElwee. 


rents,  issues  and  profits,  up  to  the  time  of  the  sale,  are  not 
charges  against  tlie  administratrix,  and  neither  of  tliese  mat- 
ters siiould  have  been  brought  into  the  settlement,  either  as 
items  of  cliarge  or  discharge. 

"Whether  the  minor  children  will  not  be  entitled  to  the  in- 
terest of  the  fund,  received  by  the  plaintiff  as  excess  of  the 
proceeds  of  the  sale  of  the  land,  the  profits  of  which  are 
devoted  by  the  will  for  their  support,  is  a  question  that  will 
arise  when  he  is  required  to  make  distribution,  but  is  not  now 
presented. 

The  judgment  of  the  Court  below  will  be  reversed,  and 
judgment  entered  for  the  sum  of  $882,22,  with  interest,  ac- 
cording to  the  case  agreed. 

Pkr  Curiam,  tTndgment  reversed^ 


THOMAS  A.  SHARPE  v.  J.  N.  McELWEE. 

Where  a  petition  for  a  ce7'<twaW  sets  out  that  the  petitioner  was  detained 
at  home  by  violent  sickness  when  his  cause  came  up  in  the  County  Court 
for  trial,  and  afterwards,  during  the  whole  of  the  term,  and  that  after  judgment, 
his  counsel  prayed  and  obtained  an  appeal  to  the  Superior  Court,  upon  con- 
dition of  his  giving  security  for  the  appeal,  which  he  failed  to  do,  by  rea- 
son of  his  detention  at  home,  it  was  Held  that  these  facts  were  sufficient  to 
rebut  the  idea  of  his  having  abandoned  his  right  to  appeal,  and  entitled 
him  to  a  certiorari. 

Where  a  judgment  had  been  rendered  against  a  surety  On  a  bail-bond,  in  the 
County  Coiu't,  and  he  filed  a  petition  foi  a  certiorari  in  the  Superior  Court, 
stating  that  he  expected  to  be  able  to  discharge  himself  from  liability  by 
the  next  term  of  the  court  by  a  surrendei-  of  his  principal,  it  was  Held  that 
this  statement  did  not  render  him  obnoxious  to  the  charge  of  appealing 
meiely  for  delay. 

AiM'KAL  from  an  order  dismissing  a  petition  for  a  certio7'ari, 
heard  before  Dick,  J.,  at  the  last  fall  Term  of  Mecklenburg 
Superior  Court. 


116  IN  THE  SUPREME  COURT. 

Sharpe  v.  McElwee. 

The  petition  discloses  the  following  facts:  The  petitioner 
and  one  Cook,  were  special  bail  for  one  James  Whitesides, 
A  judgment  was  obtained  against  White&ides  in  the  County- 
Court  of  Mecklenburg,  upon  which  execution  issued  and  was 
returned  "  nulla  hona.'''' 

A  scire  facias  then  issued  against  the  petitioner  and  Cook. 
"When  the  sci.  fa.  was  executed  upon  the  petitioner,  he  em- 
ployed counsel,  who  appeared  and  entered  his  pleas,  at  Jan- 
uary Term,  1859.  The  cause  was  then  continued  until  April 
Terra,  1859,  when  petitioner  attended  court  and  spoke  to  bis- 
counsel  about  his  said  cause,  this  occurred  on  Tuesday  of  the 
terra  ;  on  Tuesday  evening  he  returned  home,  intending  to* 
return  to  the  court-house  during  the  week  to  attend  tO'  the  said 
cause;  that  on  the  sarae  evening  he  was  taken  violently  sicky 
and  was  unable  to  return  to  town  or  attend  to  any  business 
during  the  reraainder  of  the  week  ;  that  when  his  cause  was 
I'eached,  his  counsel  was  not  informed  of  his  sickness,  and  be- 
ing compelled  to  try  the  cause,  judgment  was  obtained  against 
petitioner  and  Cook,  that  his  counsel  prayed  an  appeal  from 
this  judgment  to  the  Superior  Court,  which  was  granted  and 
entered  of  record,  but  that  petitioner  failed  to  givQ  security 
on  account  of  his  absence,  and  that  his  said  absence  was  oc- 
casioned solely  by  the  sickness  aforesaid.  The  petition  fur- 
ther states,  that  petitioner  expected  to  be  able  to  discharge 
himself  as  bail,  by  surrendering  his  principal  hjy  or  before,  the 
next  term  of  Court. 

Upon  the  return  of  the  writ,  the  defendant  moved  to  dis- 
miss the  petition.  Motion  allowed.  Petitioner  appealed  to 
this  Court. 

Wilson,  for  petitioner, 
Lowrie,  for  defendant. 

Pearson,  C.  J.  "Where  an  appeal  is  not  jprayed  for,  the 
certiorari  is  not  a  matter  of  course,  and  the  court  will  exer- 
cise a  discretion  in  regard  to  the  application.  In  such  cases, 
the  petition  must  account  for  the  fact,  why  an  appeal  was  not 


DECEMBER  TERM,  1860.  117 


Sbarpe  v.  McEhvee, 


prayed,  and  thei-e  must  be  an  affidavit  of  merits,  setting  out 
(the  fjicts  on  which  tlie  party  founds  his  belief,  that  he  has  a 
good  defense,  so  as  to  satisfy  the  court  that  his  belief  is  well 
founded.  Where  an  appeal  is  prayed  for,  and  th-e  court  re- 
fusee  to  allow  it,  or  the  party  is  unable  to  give  the  security 
requii^d  by  iaw,  the  certiorari  is  ^-ranted  as  a  matter  of 
tconree-;  Bledsoe  v.  Snoio,  3  Jones,  99  ;  McCormell  v.  Cald- 
well, 6  Jou'cs,  409.  It  is,  in  effect,  a  mere  application  to  be 
.allowed  to  file  anappeal  bond,  nmie  pro  tunc. 

In  our  case,  an  appeal  was  prayed  for  and  granted  upon 
giving  an  a/p]>eal  bond  according  to  law,  and  tiie  ease  did  not 
■come  up,  because  the  bond  was  not  given.  So,  theonly  ques- 
.tion  is,  did  the  pai-ty  fail  to  give  th-e  bond,  because  he  had 
.abandoned  his  right  to  appeal,  or  because  he  was  unable  to 
procure  tke  security  required  by  the  Ifiw,  so  as  to  acquit  him 
of  laches  ?  Upon  this  point,  the  petition  and  affidavit  are  en- 
tirely satistaetory  ;  for  the^ietition  sets  forth,  that  the  defendant 
^'  attended  Cowrt  and  went  home,  nitending  to  return  during 
the  week  and  attend  to  his  case,  but  was  taken  violently  sick 
and  was  unable  to  retumi,  or  attend  to  any  business  during 
the  rest  of  the  week."  This  accounts  for  his  not  giving  the 
bond,  and  excludes  all  idea  of  his  having  abandoned  his  right 
ifeo  appeal,  and  fully  acquits  him  of  any  imputation  of  laches. 
As  a  matter  of  course,  the  party  ought  to  be  put  in  fhe  same 
•condition  as  if  the  appeal  had  been  brought  up  in  the  regular 
way. 

It  was  object'^d,  on  the  argument,  that  the  petitioner,  by 
his  own  showing,  had  no  defense  at  the  time  the  judgment 
was  rendered  against  him,  and  took  the  appeal,  because  lie 
expected  to  be  able  to  discharge  hinificlf,  as  baiJ,  b3'  surren- 
der of  his  principal,  by,  or  before,  the  term  of  the  Superior 
Court  to  which  the  appeal  was  prayed,  and  thk,  as  was  in- 
eisstcd,  proves  tiiatithe  appeal  was  .taken  merely  for  delay,  and 
should,  therefore,  be  made  an  exception  to  the  general  rule 
above  stated.  In  support  of  this  ijositiou,  BetU  v.,  Franh 
tin,  4  Dev.  and  Bat.  465,  was  reli€xJ  on.  It  is  true,  fhe  peti- 
ts4aaer  adwiits  he  had  jqo  d>efeiiiee  at  tike  time  the  juxIgiaQent  was 


118  IN  THE  SUPREME  COURT. 

Sharpe  %j.  McElwee. 

rendered  in  the  County  Court,  but  it  does  not  follow  that  the 
api)eul  was  taken  inereh^  fur  dela)\  On  tlie  contrary,  the 
avowed  object  for  appealing  was,  because  the  party  expected 
to  have  a  good  defease  in  the  Superior  Co-nrt,  and  1o  be  then 
and  there  able  to  avail  liiniseif  of  )>is  right  to  be  diseliarged 
by  the  surrender  of  his  |>i'ineipal,  according  to  the  provision 
of  the  statute,  made  in  favor  of  Iwiil.  So,  the  appeal  was  not 
for  delay,  and  no  reason  can  be  suggested,  why  one,. who  is  not 
in  default,  should  be  «leinived  f:>f  an  opportunity  lo  make 
available  a  defense,  wliich  is  given  to  him  by  law,  ami  should 
not  be  at  liberty  to  extend  the  time  by  appeal  or  cevtiorarij 
as  a  substitute  for  an  a|ij)eal,  as  far  as  he  is  en^titled  to  do,  ac- 
cording to  the  court^e  of  the  courts,  without  being  obnoxious 
to  the  charge  of  appealing  nieretj  tVu-  delay. 

The  case  of  Beits  v.  FrcmJdiu^  is  not  in  point.  No  appeal 
was  prayed  in  that  case,  and  being  on  a  ea.  sa.  bond,  the 
part}'  could  not  afterwaids  discharge  himself  by  a  snrrender 
of  his  pi'iucipal.  So,  he  did  not  expect  to  be  able  to  make  a 
defense  in  the  Superior  ('ourt.  atK*.  the  certiorari  eould  an- 
swer no  other  pui-pose  but  to  delay  judgment.  The  general 
remark  made  by  the  Court,  in  tfeat  case,  n>ust  he  referred  ta 
circumstances,  then  presented,,  and  have  no  application  to  the 
case  tiow  under  consideration,  which  is  ]>ecuHar,  because  cf 
the  rigiit  given  to  bail,  to  make  a  surre-niler  at  any  time  be- 
fore he  is  tixed  with  the  del»t. 

Thei'e  is  error.  The  judgment,  dismissing  the  eeriiorari^ 
is  reversed,  and  the  ease  sbould  he  put  \\\\<c\\\  the  trial  docket. 

PEii  CuKiAM>  Judgment  reversed^ 


DECEMBER  TERM,  1860.  119 


Rnil  Roiid  Company  v.  Vinson. 


THE  NORTH  CAROLINA   RAIL    ROAD    COMPANY   v.   JAMES   A. 

VINSON. 

Wliere  the  presirlont  of  a  rail-road  companj'  was  informed  that  a  suit  wa? 
abont  to  be  brought  ajrainst  his  company,  before  a  justice  of  the  peace,  and 
believing  tliat  a  re<;overy  in  such  suit  vvonld  be  nnjnst,  gave  instruction  to 
the  most  convenient  station-agent,  to  attend  tlie  trial,  and  in  case  of  a  re- 
covery against  tiie  company,  to  appeal  to  court,  ami  such  agent  was  a  dili- 
gent and  hiitiiful  otTicer,  but  from  ignorai^ce  of  the  law,  failed  to  procure  se- 
curity ibr  the  appeal,  it  was  //eWlhat  there  was  no  such  laciieson  the  part  of 
the  president,  as  deprived  the  company  of  a  right  to  a  recordari. 

Tins  was  a  j)etifi<iii  tor  a  kkcordari,  lioaid  l>efore  Heath, 
J.,  at  the  last  Fall  Term  of  J<»lmstoii  Siipciior  (-oiirt. 

The  facts,  ai)j)C'aiin<j^  fiom  the  |>lea<liii<rs  and  j •  roofs,  are : 
tliat  Charles  F.  Fisher,  who  is  the  President  of  tlie  North 
Cai'oliua  Rail-Road  Ct>iii[>ati3',  having  heen  informed  that  suit 
was  ahont  to  he  hroiiirht  before  a  justice  of  Johnston  county, 
as^aiiist  the  company,  by  the  defendant,  Vinson,  for  damages 
to  stock,  and  being  of  opinion  that  the  said  Vinson  jiad  no 
just  right  to  recover  damages  for  the  alleged  injiirv,  gave  di- 
recti<»ns  to  one  MilJimku-,  who  was  a  station  agent,  in  case  the 
6nit  was  brought  and  decided  against  the  coiripany  by  the 
magistrate,  t(»  take  an  appeal;  that  Millinder  attended  the 
trial  before  the  jiisiice  of  the  peace,  and  resiste<l  the  claim 
on  behalf  of  the  com|>any,  but,  that  the  justice,  nevertheless, 
gave  judgment  against  the  company  for  ninety  dolhirs,  dama- 
ges and  Costs,  wliereii|)on,  Millinder  prayed  an  appeal  to  the 
next  Coiiiuy  Court,  but,  from  ignorance  of  the  law  in  this  re- 
spect, he  failed  to  give  secnriry  lor  the  prosecnti(»n  of  the  ap- 
peal, and  aftei"  the  expiration  of  ten  days,  execution  issued  on 
the  justice's  judgment  f<tr  theam<Mmt  recovered,  Millinder  was 
the  ollicer  of  the  company  on  whom  notice  was  served  to  in- 
stitute the  action,  and  atiended  in  |terson  on  the  trial,  Mr. 
Fisher,  the  president,  lived  in  a  distairt  county,  atKl  was  so 
mnch  engrossed  v  ith  the  nntre  important  dtifies  of  the  com- 
pany as  not  to  be  able  to  attend  in  person  to  nnitters  of  this 
kind,  but  left  them,  usually,  to  the  agents  most  convenient  to 


120  IN  THE  SUPEEME  COURT. 

Eail  Road  Company  v.  Vinson. 

1he  scene  of  the  transaction ;  he  had  been  informed,  and  was 
warranted  in  believing  that  Millrnder  was  a  faithful  and  dili- 
gent agent,  in  his  management  of  the  business  of  the  compa- 
ny entrusted  to  him. 

The  prayer  of  the  petition  is  for  2,  reGordari,  and  for  a  su- 
persedeas to  stop  the  collection  of  the -execution. 

The  order  for  these  writs  having  been  made  and  the  case 
brought  up,  and  motion  being  made  to  place  it  on  the  trial 
docket  for  a  new  trial,  'his  Honor  disallowed  the  motion,  and 
the  plaintiff  appealed. 

B.  F.  Moore  and  Dortch,  for  the  plaintiff. 

^G.   W.  Haywood  and  Strong,  iov  the  defendant 

Pearson,  C,  J.  An  appeal  having  been  prayed  for,  the 
'Case  falls  within  the  principle  of  Sharpe  v.  McElwee,  ante 
115,  "  where  an  appeal  i&  prayed,  and  the  party  accounts  in 
a  satisfactory  manner  for  his  failure  to  prosecute  it,  so  as  to  repel 
the  inference  of  an  intention  to  abandon  it  and  acquit  himself 
■of  laches,  the  writ  of  certiorari  or  recordari  will  issue,  "as 
:a  matter  of  course,"  in  order  to  give  him  the  benefit  of  his 
right  of  appeal. 

By  the  affidavit  of  Mr.  Fisher,  it  is  clearly  established  that 
it  was  the  intention  of  the  Xorth  Carolina  Rail  Road  Compa- 
ny to  contest  the  alleged  right  to  recover  damages.  So,  the 
inference  of  an  intention  to  abandon  the  right  of  appeal,  is 
repelled.  In  this  connection,  the  "  affidavit  of  merits,"  which 
is  full,  though  not  absolutely  necessary,  (as  an  appeal  was 
prayed)  is  relevant,  and  has  a  convincing  effect. 

The  question  then,  is,  does  the  Rail  Road  Company  acquit 
itself  of  laches,  by  the  matter  set  out  in  the  petition  and  affi- 
davit of  Mr.  Fisher  ?  In  other  words,  does  Mr.  Fisher,  who 
is  the  president  of  the  company,  and  had  notice  of  a  claim, 
which  he  believed  not  to  be  well  founded,  and  was  fit  to  be 
^controverted  by  the  company,  acquit  himself  of  laches,  by  the 
fact,  that  he  gave  positive  instructions  to  Millinder,  the  station 
agent,  to  attend  the  trial  before  the  justice  and  take  an  ap- 


DECEMBER  TERM,  1860.  121 


Rail  Road  Company  v.  Vinson. 


peal,  on  behalf  of  the  company,  if  judgment  should  be  ren- 
dered against  it ! 

The  petition  sets  forth  the  fact,  tliat  Millinder  had  tlio  rep- 
utation "  of  "being  a  faithful  and  diligent  agent,"  and  this 
■Court  is  of  opinion  that  Mr.  Fislier  was  well  warranted,  in 
tahing  it  for  granted^  that  Millinder  was  aware  of  the  tact, 
that  it  was  necessary  in  all  appeals  to  give  security,  and,  con- 
sequently, he  was  not  guilty  of  laches  in  omitting  to  tell  jNIil- 
linder,  in  so  man}-^  words,  that  he  must  provide  security  for 
the  company,  in  case  he  iiad  to  take  an  a]:)peal. 

The  fact,  that  Millinder,  being  an  otficer  of  the  company, 
had  imbibed  the  impression,  that  the  North  Carolina  Rail 
Road  Company  was  an  institution  of  such  importance,  tiiat  it 
was  not  required  to  give  security  foi*  an  api)eal  like  an  ordi- 
nary individual,  was  a  matter,  which  pi-esident  Fishei",  in  llie 
exei'cise  of  ordinary  diligence,  could  not  be  expected  to  havu 
anticipated. 

The  objection  that  ignorance  of  the  law  is  no  excuse,  liow- 
ever  applicable  it  may  be  in  reference  to  Millinder,  tends  to 
relieve  Mr.  Fisher  from  the  charge  of  laciies.  For  it  is  based 
on  the  presumption  that  every  one  knows  the  law,  and,  there- 
fore, lie  was  justified  in  ])rosuming  that  Millinder  knew  that 
It  was  necessary  for  the  company  to  give  security  ;  and  as  the 
law  allows  ten  days  to  give  security,  he  was  also  justified  in 
presuming,  that  if  Millinder  found -any  ditiiculty  in  piocuring 
eecui'ity,  he  would  be  duly  notified  of  the  fact. 

As  there  was  a  hona  fde  intention  to  appeal,  and  no  laches 
on  the  part  of  the  president,  the  company  should  not,  under 
the  circumstances,  be  dejM-ived  of  the  right.  There  is  error. 
Judgment,  dismissing  the  petition,  reversed.  This  opinion  will 
be  certified,  to  the  end,  that  the  case  may  be  transferred  to 
the  trial  docket. 

Pek  CuRiiUSL  Judgment  reversed. 


122  IN  THE  SUPREME  COURT. 


Drake  v.  Bains. 


JOHN  H.  DRAKE  v.  ABSOLOM  B.  BAINS. 

Upon  a  question  of  warranty  or  no  warranty,  ft  was  Held  to  be  error  in  a 
Judge  to  cliarp:e.  that  the  fact  that  tho  alleged  warrantor  was  acting  ni  the 
capacity  of  an  executor,  was  not  a  matter  for  the  consideration  of  the  jury. 

This  was  an  action  on  the  cask,  tried  at  Johnston  Superior 
Court,  Fall  Term,  I860,  Hkath,  J.,  presiding,  and  in  which 
plaintiff  declared  in  deceit  and  false  warranty,  on  the  sale 
of  a  slave  by  defendant  ro  |)laintiff. 

One  Drake  testified,  that  prior  to  the  institution  of  this 
suit,  he  was  at  a  public  i)lace,  at  which  i)laintiff  and  defen- 
dant were  both  present ;  that  speaking  of  the  alleged^  sale,, 
plaintiff' said  to  defendant,  '^Bains,  you  know  yon  warranted 
that  slave  to  nie";  to  which  defendant  replied,  "what  if  I  did," 
or,  ''if  I  did,  it  makes  no  difference,  as  my  lawyer  tells  me 
an  executor  cauHot  wan-ant  a  slave." 

Another  witness  swore,  that  on  another  occasion,  he  heard 
plaintiff'  say  to  defendant,  "'you  have  acknowledged  to  ine 
that  you  warranted  Jack  to  l«i  sound,"  or,  "that  yon  told  me 
he  was  sound,"  and  defendant  rej)lied,  "yes,  I  have  always 
admitted  that." 

The  slave,  Jack,  was  proved  to  have  been  in  the  possession  of 
defendant  for  some  time  j)rior  to  Si'ptember,  1856,  at  which 
time  he  j>assed  into  plaintiff"s  |)ossession. 

One  Thorn  swore,  he  heard  Drake  tell  the  defendant,  on  th© 
day  of  the  sale,  that  he  would  take  Jack  at  $900.  and  hia 
wife  and  children  at  $1,900;  to  which  |)ropositioti,  defendant 
assented.  Di'ake  said,  '*I  am  in  a  hurry,  1  cannot  settle  now,, 
we  can  do  that  at  any  time."  Drake  then  turned  to  the  slave, 
in  defendant's  presence,  and  said,  "get  your  things,  your  wife, 
&c.,  and  go  to  my  house;"  he  heard  nothing  said  of  any 
warranty. 

One  Harrison  swore,  that  he  was  called  upon  on  the  day  oi' 
the  sale,  to  value  the  slave,  and  that  he  valued  him   at  $900'., 

One  Strickland  swore,  that  he  was  present  on  the  day  of 
the  sale  and  heard    plaintiff  tell    defendant   he    would    take 


DECEMBER  TERM,  1860.  123 

Diake  v.  Bains. 

Jjick  at  tlie  valuation,  $900,     He  lieaid    iiotliiiig  said    about 
wari-antiiii^  his  soniuhiess. 

Dot'endant  fiii-tlier  proved,  tliat  at  the  time  of  the  alleged 
sale,  he  acted  as  the  executor  of  tme  Shennd  ;;  that  it  was  his 
diUv,  and  that  of  a  co-exeentoi\  \\•\\^^  (pialiiied  to  SheiioiPs 
will,  to  sell  the  slave  after  tlie  e.\]>iiaiion  of  a  life-estate^ 
which  had  just  expired,  after  aw  existence  of  seven  or  more 
jears,  and  that  this  co-executor  was  ))iesent  at  the  time  of 
the  alleijjed  sale;  ti>ere  was  no  evidence  that  it  Mas  made 
known  to  the  plaintitf  that  defendant  was  actin<r  as  executor,. 

There  was  much  testiniony  tendini^-  to  prove  the  slave  nn- 
sotmd  at  the  time  of  the  sale. 

The  Judge  ciiarged  the  jnr}-,  aMioiig  other  things,  that  "if 
there  was  im  sale,  or  if  thei-e  was  a  sale  and  no  warran'y  of 
soundness,  then  their  verdict  must  he  for  defendant,  and  in 
this  connection,  and  under  the  cireuinstances,  they  need  ))ay 
no  attention  to  the  tact  that  the  defendant  was  aciing  as 
executor."     Defendant    accepted. 

There  was  a  verdict  for  plaintiff.  Judgment.  Appeal  by 
defendant. 

Miller^  Moore^  A.  M.  Lewis  and  lingers^  for  plain titt". 
Dortch  and  Strong,  for  defendant. 

Pearson,  C.  J.  The  evidence  in  support  of  the  allegation, 
that  the  defendant,  at  the  time  of  the  sale,  aii<l  a,s-  a  jxcrt  of  ity 
warranted  the  slave  to  be  sound,  (for,  if  made  afiei  wards,  it 
v:rq  nudum  jxictiim)  WHS,  very  slight.  Two  witne>sfs,  who 
were  present  at  the  time  of  the  sale,  say  "they  heani  nothing 
said  about  a  warranty,"  and  oj)o  of  the  two  witnes:  es.  w  ho 
depose  to  the  conversations  which  are  relied  on  as  furnish- 
ing an  inference  that  there  was  a  warranty,  recites  ilii'  words 
in  the  alternative,  and  in  one  aspect,  they  <lo  not  fuinish  any 
evidence  of  a  warranty,  i.  e..  "you  have  always  acknowledg- 
ed to  me,  that  you  warranted  Jack  to  be  sound,"  oi-,  "t/mt  f/ou 
told  me  he  was  sotmd."' 

Tills  evidence  is  referred   to,  foi-   the   j)Upose  of  ^howing, 


124  m  THE  SUPREME  COURT. 

Drake  v.   Bains. 

that  in  respect  to  the  question,  did  the  defendant,  at  tlie  lime 
of  the  sale,  warrant  tlic    shave    to    be   sound,    it   was   of  the 
highest  importance  that  no  room  should  be  given  for  misap 
prehension  on  the  part  of  the  jury. 

This  Court  is  of  opinion  that  the  defendant  has  good  ground 
of  complaint  against  that  part  of  his  Honor's  charge,  an  which 
he  sa_y5,  "and  in  this  connection,  and  under  the  circumsiances, 
they  need  pay  no  attention  to  the  fact  that  the  defendant  was 
acting  as  executor,"  We  confess  we  are  unable  to  appi'ehend 
the  idea  his  Honor  meant  to  convey  by  these  words.  An  ex- 
ecutor may  bind  liimself  individuall}^  by  a  wan-anty  of  sound- 
ness in  selling  a  slave  of  tiie  estate;  there  is  no  doubt  of  that; 
and  it  onh^  required  direct  words  to  express  it,  "In  this  con- 
nection," that  is,  in  reference  to  the  allegation  of  a  warranty, 
^'and  under  the  cireumstances" — What  cireumstances?  AH 
the  circumstances  attending  the  dealing?  if  so,  in  the  opinion 
of  this  Court,  it  was  very  needful  that  the  jury,  in  passing  on 
the  question  of  warranty  or  no  warranty,  should  take  into  con- 
sideration the  fact  that  the  defendant  was  acting  as  executor, 
for  it  was  a  circumstance  having  an  important  bearing  on  the 
question.  One  circumstance  was  that  the  warranty  was  not 
proved  by  direct  testimony,  and  was  left  as  a  mere  matter  of 
inference,  to  be  di'awn  tVom  a  i-ecital  of  conversations,  in  res- 
pect to  which  (however  truthful  the  witnesses  might  be)  there 
was  danger  of  misapprehension.  Another  was,  that  the  price 
of  the  slave h^  been  fixed  by  a  previous  valnation,  and  tiiere 
w^as  no  enhancement  of  the  price,  by  reason  of  the  supposed 
warrant}'.  Another  was.  that  the  co-executor  of  the  defendant, 
was  not  required  to  join  in  the  warranty.  "Under  the  circum- 
stances," thei-efore.  it  was  a  matter  for  the  most  serious  con- 
sideration of  tlie  jury,  why  should  the  defendant  have  volun- 
teered to  make  himself  personall}'^  liable  by  adding  a  warranty 
as  a  part  of  the  ta-ade.     There  is  error. 

Pee  CuiiiAM,  Judgment  reversed. 


DECEMBER  TERM,  1860.  125 


Thompson   v.   Andrews. 


D.  F,  THOMPSON  v.  JOHN  ANDREWS. 

Where  the  plaintiff  delivered  a  quantity  of  Avheat  to  the  defendant,  with 
an  injunction  to  keep  it  until  called  for,  to  which  he  assented,  it  was  Held 
in  an  action  of  trover,  brought  to  recover  its  value,  that  it  was  a  valid  de- 
fense for  the  defendant  to  show  that  the  title  to  the  wheat  was  in  a  third 
person,  to  whonji  he  had  delivered  it  before  the  plaintilV's  demand  and  suit. 

This  was  an  action  of  trotkr,  tried  before  Dick,  J.,  at  a 
Special  Term,  June,  1860,  of  Orange  Superior  Court. 

The  facts,  material  in  this  case,  are  as  follows  :  The  action 
was  hi'ouo^ht  to  recover  the  value  of  forty-two  bushels  of  wheat. 
The  plaintiff  introduced  a  witness,  one  Wright^  who  testified 
that  in  the  year  1854,  he  was  told  by  the  plaintiff  to  take  hi& 
(plaintiff's)  thi'csher  and  go  and  tliresh  out  one  Pickard's 
wheat;  that  he  went  and  threslied  out  the  wheat  on  Pickard's 
hind,  and  on  the  following  day,  in  obedience  to  the  plaintiff's 
instructions,  he  carried  the  wiieat  to  defendant's  mill  and  told 
him  to  keep  it  until  plaintiff  called  for  it;  to  which  the  de- 
fendant assented. 

Tlie  defendant  then  offered  a  M-itness  to  prove  that  Pickai'd 
was  the  owner  of  the  wheat  in  question,  and  that  it  had  been 
ground  into  flour,  by  his  order,  and  taken  from  the  mill  by 
liim,  and  that  this  occurred  before  any  demand  was  made  by 
the  plaintiff  on  the  defendant  for  the  same.  The  plaintiff  ob- 
jected to  this  evidence,  npon  the  ground,  that  the  defendant 
having  accepted  the  wheat  as  a  bailment  from  the  plaintiff",  was 
eslopped  to  deny  the  plaintiff^'s  title  to  it.  Ilis  Honor  being 
of  opinion  with  the  plaintiff,  rejected  the  evidence.  Defend- 
ant excepted. 

The  defendant  denied  the  contract  of  bailment  with  the 
plaintiff*  as  sworn  to  by  Wright,  and  offered  to  show  that  the 
title  was  in  Pickard,  as  evidence,  from  which  the  jury  might 
determine  with  whom  the  contract  of  bailment  had  been  made 
by  defendant.  Ilis  Honor  ruled  out  the  evidence,  upon  the 
ground,  that  evidence  of  the  title  could  furnish  no  aid  to  the 
jury  upon  the  question  of  bailment.  Defendant  excepted. 
Verdict  for  plaintiff".     Judgment.     Appeal  by  defendant. 


120  m  THE  SUPREME  COURT. 

Thompson   v.    Andrews. 

Graham^  for  the  plaintiff'. 
Phillips^  for  the  defendant. 

Battle,  J.  We  are  clearly  of  opinion  that  his  Honor  erred 
in  rejecting  the  testimon}'  which  was  otfered  on  the  trial,  to 
show  that  Pickai'd,  and  not  the  plaintiff,  was  the  owner  of 
the  wheat  in  controversy,  and  that  he  had  demanded  and  re- 
ceived it  from  the  defendant  before  the  plaintiff's  demand 
and  suit.  If  Pickard  were  the  real  owner  of  the  article,  conld 
the  plaintiff's  act  of  bailing  it  to  the  defendant,  prevent  Pick- 
ard from  claiming  it  and  i-ecovering  its  valne,  if  it  were  with- 
held from  him  by  the  defendant?  Snrel}'  not.  No  man  can 
be  thus  deprived  of  the  right  of  demanding  his  ])i'oi)ertj  from 
any  pei'son  who  has  possession  of  it  and  i-etains  it  against  his 
will.  The  refusal  of  the  possessor  to  deliver  it  npon  such  a 
demand,  would  be  evidence  of  a  conversion,  for  Avhich.  if  nn- 
ex])lained,  the  owner  would  be  entitled  to  recover  the  full 
value  of  his  property.  If  then,  the  ]»ossessor  cannot,  npon  the 
ground  of  his  being  the  bailee  of  another  ])ei'son,  i-etist  the 
claim  of  the  true  owner,  his  surrender  of  the  article  to  the 
owner  must  necessai'ily  be  a  defense  against  the  action 
of  the  bailor,  founded  nj)on  the  charge  of  a  conversion  of  the 
property.  It  raaj  be  that  the  bailor  might  recover  something 
in  an  action  of  assumpsit  for  the  breach  of  the  contract  of 
bailment,  but  the  law  cannot  be  so  hard  as  to  render  the 
bailee  liable  for  the  full  value  of  the  article,  both  to  the  own- 
er and  bailor,  npon  the  ground  of  a  convei'sion  as  to  both. 
The  true  doctrine  on  the  subject  is  announced  in  tlie  case  of 
Pitt  V.  Alhritt07i,  12  Ire.  74,  and  is  in  accordance  with  the 
view  which  we  have  taken  of  the  present  case. 

There  are,  indeed,  some  cases,  in  which  the  true  owner  is 
not  known,  and  where  there  is  no  probability  of  his  appear- 
ing and  making  claim,  where  the  courts  would  sustain  the 
action  of  trover  in  favor  of  a  bailor  against  a  wi'ongfully  re- 
cusant bailee  ;  see  Armor?/  v.  Delamere,  1  Stra.  505  ;  Craig 
V.  Miller,  12  Ire.  375.  In  such  cases,  to  allow  the  jus  tertii 
to  be  set  up  as  a  defense  to  the  action  of  the  bailor,  would 


DECEMBER  TERM,  1860.  127 


Hughes  V.  Debnam. 


enable  the  bailee  to  keep  the  property  without  accoiuitinglor 
its  value  to  any  bod}-,  and  thus  to  be  rewarded  for  his  bi-each 
of  faith.  But  the  rule  of  law  must  nGcessarilj'  be  different 
where  the  owner  couies  forwai'd  and  demands  the  article,  and 
is  ready  to  j)rove  a  title  which  cannot  be  gainsaid  or  resisted. 
Such  was  the  j>resent  case,  aud  the  Judge  ought  to  have  per- 
mitted the  defendant  to  show,  if  he  could,  that  he  had  delivered 
the  article  to  the  ti-ue  ownei-,  and  consequently,  had  not  con- 
vei'ted  it  as  against  his  bailor. 

Per  CuKiAM,         Judgment  i-evcrsed,  and  a  venire  denovo. 


WILLIAM  11.  HUGHES  v.  JOHN  B.  DEBNAM. 

Where  the  charge  of  a  Judge  is  in  favor  of  a  party,  such  party  cannot  make 
it  a  ground  ot  objection. 

Where  there  is  doubt,  whether  or  not  a  subscribing  witness  to  an  instrument 
signed  it  before  the  donor,  it  was  Held  that  in  the  absence  of  proof  to  the 
contrary,  the  presumption  is,  that  the  donor  signed  it  first. 

Slighi  anil  immaterial  mistakes  in  the  registration  of  a  deed  of  gift,  will  not 
avoid  it. 

A  square  piece  of  paper  affixed  witli  a  wafer  to  an  instrument,  opposite  to 
the  name  of  the  donor,  in  the  place  where  the  seal  is  usually  placed,  will, 
in  the  absence  of  pi'oof  that  the  donor  intended  otherwise,  be  valid  as  a 
seal. 

Whei'e,  in  an  action  brought  to  recover  the  value  of  certain  slaves,  the  plain- 
tifi'  sought  to  set  aside  a  conveyance  of  them  to  a  daughter,  and  oO'ered 
evidence  to  show  that  the  donor  had  grand-children,  who  were  poor  and 
in  need  of  her  bounty,  it  was  field  competent  for  the  defendant  to  intro- 
duce in  evidence,  in  order  to  rebut  this  testimony,  a  conveyance  by  the 
donor  of  other  p.operty  to  these  grand-children. 

The  lOth  section  of  the  37th  chapter  of  the  Revised  Code,  makes  a  certified 
copy  of  a  registered  deed  competent  evidence. 

It  is  sufficient  if  a  subscribing  witness,  at  the  execution  of  the  instrument, 
had  miiid  enough  to  understand  the  obligation  of  an  oath,  and  to  prove  the 
capacity  of  the  donor  and  his  execution  of  the  deed. 


128  m  THE  SUPREME  COURT. 


Hughes  V.   Debnam. 


This  was  an  action  of  trover  for  the  value  of  certain  slaves, 
tried  before  Saunders,  J.,  at  Fall  Term,  1860,  of  Granville 
Sujierior  Court. 

The  plaintiff  offered  evidence,  tending  to  show,  that  the 
slaves  in  controversy,  were  the  property  of  his  intestate,  Lucy 
Coghill,  and  were  in  her  possession  at  the  time  of  her  death, 
and  that  the  defendant  converted  the  same  after  her  death, 
and  that  they  were  of  a  certain  value. 

Defendant  claimed  the  slaves  under  a  gift  from  the  intes- 
tate, Lucy  Coghill,  to  his  wife,  who  was  the  daughter  of  intes- 
tate, and  in  support  of  his  claim,  offered  a  writing,  dated  the 
25tli  of  Fehruar}^  1850,  purporting  to  convey  the  slaves  for 
love  and  affection  to  plff''s  wife,  and  to  have  been  executed  by 
intestate  and  attested  by  one  William  J.  Andrews.  To  prove 
the  said  writing,  defendant  called  one  Kittle,  who  testified 
that  the  signature,  pui'])orting  to  be  Lucy  Coghill'srwas  gen- 
uine, and  that  William  tT.  Andrews  was  dead,  and  that  the 
signature,  ])urporting  to  be  his,  was  genuine.  Thei'e  was  up- 
on the  paper-writing,  just  under  the  mime  of  the  attesting 
witness,  Andrews,  an  appearance  that  something  had  been 
written  and  cut  off.  Tiie  witness,  Kittle,  on  his  examination 
by  defendant,  stated  that  the  remains  of  what  had  been  cut 
oft",  were,  in  his  opinion,  the  top  of  the  letters  of  the  name  of 
Lucy  Coghill,  the  donor,  and  defendant's  counsel  insisted  that 
such  was  the  fact.  Plaintiff  insisted  that,  if  that  was  true,  it 
M'as  a  spoliation  and  avoided  the  instrument,  unless  the  de- 
fendant could  explain  it  away.  Defendant's  counsel  insisted 
for  explanation,  that  supposing  it  to  be  so,  tlie  name  was  put 
there  by  mistake  and  cut  off  before  the  execution  of  the  pa- 
])ei'. 

The  Judge  charged  the  jury  that  it  was  all  supposition,  and 
that  there  was  no  evidence  that  any  name  ever  had  been  there 
or  ever  had  been  cut  off,  except  what  had  appeared  from  the 
face  of  the  paper  itself,  but,  that  if  the  jury  should  believe, 
from  their  inspection  of  the  paper,  that  there  had  been  a  name 
to  the  paper,  put  there  as  a  witness,  and  that  it  had  been  cut 


DECEMBER  TERM,  1860.  129- 

Hughes  V.   Debnam. 

off,  tliat  would  be  snch  a  spoliation  as  would  destroy  the  in- 
strument, and  that  w^as  a  fact  for  the  jury. 

Plautiff  contended  that  Andrews'  name  was  the  first  under 
the  attesting  clause,  and  that  some  other  name  was  put  under 
his,  and  that  the  presumption  was  that  tlie  lower  name  was 
last  in  order  of  time,  and  that  if  that  name  was  Lucy  Coghill, 
as  insisted  on  by  defendant,  then,  the  presumption  was,  that 
Andrews  attested  before  Lucy  Coghill  executed  it,  and  that 
that  was  not  a  sufficient  attestation,  and  asked 'his  Honor  so 
to  instruct  the  jury,  Avhich  he  declined  tado.     Pl'ff.  excepted. 

When  this  paper-writing  was  oifered,  plaintiff  objected, 
that  it  had  not  been  registered.  Defendant  introdiiced  the 
public  register  and  ^lis  book,  from  which  it  appeared  that  the 
writing  had  been  correctly  copied  upon  the  book,  except  that 
the  word  "  said,"  preceding  the  word  "  property,"  was  not 
upon  the  book  and  was  in  the  writings  and  except  that  at  the 
end  of  Lucy  Coghill's  name  on  the  book,  there  was  written 
the  word  "  seal"  with  a  scrawl  around  it.  The  writing,  when 
offered,  had  not  the  word  "  seal"  and  the  sei'awl,  but  in  its 
place  had  a  piece  of  paper  about  three  quarters  of  an  inch 
square  pasted  on  with  a  wafer.  His  Honor  admitted  the 
writing  in  evidence.  Plaintiff  further  contended,  that  the 
square  piece  of  paper  and  wafer  was  not  itself  a  seal,  and 
asked  his  Honor  so  to  chai-ge,  which  he  refused  to  do.  But 
charged  the  jury,  tliat  the  square  piece  of  paper  and  wafer 
was  itself  a  seal,  if  they  believed  it  had  been  so  intended  by 
the  donor.     Plaintiff  excepted. 

Defendant  asked  the  M-itness,  Kittle,  if  Lucy  Coghill  was 
not  much  attached  to  defendant's  wife.  He  answered,  yes. 
Plaintifi' then  asked,  if  she  had  not  otlier  children  and  grand- 
children, to  whom  she  M-as  equally  attached,  some  of  whom, 
especially  her  McCraw  grand-cliildren,  w^erepoor,  and  wheth- 
er the  defendant  was  in  easy  circumstances.  To  both  of  these 
questions  he  answered,  yes.  Defendant  then  offered  in  evi- 
dence a  copy  from  the  register's  book  of  a  deed  of  gift  of 
other  property  by  Lucy  Coghill,  to  certain  of  her  McCraw 
grand-children,  dated  5th  of  March,  1850.    Plaintiff  object- 

9 


130  m  fHE  SUPEEME  COUET. 

Hughes  V.  Debnam. 

ed  to  this  evidence  upon  two  grounds  :  1st.  That  the  origin- 
al would  not  be  evidence^  and  2nd,  even  if  the  original  would 
be,  a  copy  was  not.  His  Honor  admitted  the  evidence.  Plain- 
excepted. 

The  plaintiff  offered  evidence,  tending  to  show,  that  the  at- 
testing witness,  Andrews,  was  before,  and  at  the  time  of  the 
attestation,  of  insane  mind.  And  asked  his  Honor  to  instruct 
the  jury,  that  if  he  was  insane  at  the  time  of  attestation,  then 
he  had  not  attesting  capacity  and  was  not  a  competent  attest- 
ing witness  ;  and  further,  that  if  the  jury  believed,  from  the 
evidence,  that  the  mind  of  Andrews,  at  the  time  he  subscrib- 
ed the  paper-writing,  was  diseased  and  unsound,  then  he  was 
incompetent  as  a  subscribing  witness,  anc?  the  paper-writing 
was  void,  even  though  he  might  have  understood  the  obliga- 
tion of  an  oath,  and  been  able,  if  then  examined  as  a  wit- 
ness, to  tell  that  Lucy  Coghill  signed  the  paper-writing  and 
he  subscribed  it  as  a  witness ;  and  still  further,  that  if  he  was 
insane,  he  had  not  legal  capacity  to  attest  the  paper-writing, 
no  matter  what  else  he  could  or  could  not  do.  His  Honor 
refused  the  instructions,  and  charged  the  jury  as  follows  : 
"The  act  of  Assembly  requires  a  gift  of  slaves  to  be  in  writing, 
signed  by  the  donor,  and  subscribed  by  a  credible  witness. — 
That  if  the  witness  had  capacity  to  understand  the  obligation 
of  an  oath,  so  as  to  be  capable  of  proving  the  execution  of 
the  instrument  and  the  capacity  of  the  donor,  he  would  be  a 
competent  witness.  But  if  the  jury  should  believe  the  mind 
of  the  witness  to  have  been  so  far  affected  at  the  time,  as  to 
have  rendered  him  incapable  of  understanding  the  obligation 
of  an  oath,  then  he  was  not  a  competent  witness,  and  they 
should  find  against  the  deed.     Plaintiff  excepted. 

Yerdict  and  judgment  for  defendant.     Plaintiff  appealed. 

Gillimn,  Zanier  and  Jieade,  for  the  plaintiff. 
Miller,  Graham  and  Eaton^  for  the  defendant. 

Battle,  J.  It  is  a  matter  of  regret  with  us,  that  we  have 
not  been  favored  with  an  argument  for  the  plaintiff,  for  by 
the  aid  of  such  an  argument  we  might  have  been  ena- 


^  DECEMBER  TERM,  1860.  Ml 

Hughes  V.   Debnatn. 

bled  to  perceive  more  force  in  his  exceptions,  than  we  have 
ourselves  as  yet  discovered.  The  errors  assigned  in  the  bill 
of  exceptions,  have  all  been  considered  by  us,  and  in  not  one 
of  them  do  we  find  anything  of  -which  tlie  plaintiff  has  any 
just  cause  of  complaint. 

The  exception,  founded  upon  the  supposition  that  there 
were  two  subscribina;  witnesses  to  the  alleged  deed  of  gift, 
and  that  the  name  of  one  of  them  had  been  cut  off  by  the 
defendant,  cannot  be  made  a  ground  of  objection,  because, 
upon  it,  the  charge  of  his  Honor  was  in  favor  of  the  plaintiff. 
The  other  objection,  urged  in  connection  with  the  first,  that 
from  the  inspection  of  the  instrument,  it  is  to  be  presumed 
that  the  name  of  the  subscribing  witness,  Andrews,  was  put 
there  before  the  execution  by  the  donor,  is  equall}^  unavailing 
to  the  plaintiff;  because,  the  presumption  was  just  the  re- 
verse, to  wit,  that  in  the  absence  of  proof  to  the  contrary,  all 
things  connected  with  the  execution  and  attestation  were 
rightl}^  done.     Oimiia  jyi'^suniuntur  'rite  este  acta. 

The  exception  that  the  deed  was  not  registered  because 
there  were  some  mistakes  in  the  registration,  is  completely 
met  and  answered  by  the  case  of  Van  Pelt  v.  Pugh^  1  Dev. 
and  Bat.  210,  where  it  was  held  that  slight  and  immaterial 
mistakes  in  the  recording  of  a  grant,  will  not  avoid  it.  Here, 
the  mistakes  were  both  slight  and  immaterial,  and  we  know 
of  no  difference  of  principle  in  this  respect  between  the  re- 
cording of  a  grant,  and  the  registering  of  a  deed  of  gift. 

The  objection  to  the  piece  of  square  paper,  and  wafer  be- 
ing taken  as  seal,  has  no  foundation  whatever.  It  is  certainly 
as  much  a  seal,  when  intended  by  the  party  as  such,  as  a 
scrawl,  with  the  word  "seal"  written  in  it,  can  be  ;  and  there 
was  no  evidence  that  it  was  not  put  there  as  the  seal  of  the 
donor,  when  she  signed  the  instrument.  In  the  registi'ation 
of  the  instrument,  the  register  could  do  no  more  than  make  a 
symbolical  seal  to  stand  as  a  copy  of  tlie  actual  seal  annexed 
to  the  original  deed. 

The  original  deed  of  gift,  from  the  donor  to  some  of  her 
grand-children,  would  have  been  competent  as  evidence   in 


132  IN  THE  SUPREME  COURT. 

State  V.  Smith. 

reply  to  the  proof  offered  by  the  plaintiff,  that  they  were  poor 
and  needed  the  aid  of  their  grand-mother's  bounty.  In  War- 
ren V.  Wade,  7  Jones'  Rep.  494,  similar  evidence  was  held  to 
be  admissible  to  repel  an  inference  songht  to  be  raised,  that 
the  deceased,  whose  will  was  offered  for  probate,  had  been  in- 
duced to  execute  the  script,  by  the  exercise  of  undue  influ- 
ence over  him,  because  he  had  given  his  property  away  from 
the  person  for  whom  he  was  under  a  primary  duty  to  pro- 
vide. As  the  original  deed  would  have  been  competent,  the 
37th  ch.  and  16th  sec.  of  the  Rev.  Code,  makes  a  duly  certi- 
fied copy  from  the  register's  books,  also  competent  as  evi- 
dence. 

As  to  the  exception,  in  relation  to  the  insanity  of  the  sub- 
scribing witness  at  the  time  of  the  execution  of  the  instru- 
ment, we  hold  that  the  charge  of  his  Honor,  was  substantially 
correct.  If  the  witness  had,  at  that  time,  mind  enough  to  un- 
derstand the  obligation  of  an  oath,  and  to  be  able  to  prove 
the  capacity  of  the  donor,  and  her  execution  of  the  deed,  it 
was  all  that  the  law  required ;  see  1  Green,  on  Ev.,  sec.  365  ; 
Archbolds  Crim.  PI.,  135. 

There  is  no  error. 

Per  Curiam,  Judgment  affirmed. 


STATE  V.  MOSES  SMITH. 


The  maxim  of  law  "-falsum  in  uno,  falsum  in  omnibus"  does  not  prevail  ia 
courts  of  law,  the  fact  of  the  witness'  having  sworn  falsely  as  to  one  mat- 
ter, going  to  the  credibility  and  not  to  the  competency  of  his  testimony  as 
to  other  matters. 

This  was  an  indictment  for  MmtDER,  tried  before  Sauitoeks, 
J.,  at  the  last  Fall  Term  of  Forsyth  Superior  Court. 
It  appeared  upon  the  trial,  that  the  prisoner  and  deceased 


^.--^iw.-:**         DECEMBER  TERM,  1860.  133 

State  V.  Smith. 

ihad  been  quarrelling  during  the  morning  of  the  day  on  which 
the  fatal  blow  was  given.  A  witness,  one  Martin,  was  intro- 
duced as  a  witness  for  the  State,  who  testified  as  to  facts  oc- 
curring between  the  prisoner  and  deceased  in  the  morning,  when 
he,  witness,  left ;  he  further  swore,  that  he  returned  in  the  eve- 
ning, just  before  the  commission  of  the  homicide,  and  that  he 
witnessed  it.  Evidence  was  oflered  by  prisoner,  tending  to 
show,  that  the  witness  swore  falsely  as  to  feis  witnessing  the 
^homicide.  The  «©uns&L,  for  the  prisoner,  asked  tJie  Court  to 
instruct  the  jury,  that  iif  they  should  believe  that  the  witness 
3iad  sworn  corruptly  falsely  as  to  his  presence,  the\'  should 
'reject  his  testimony  altogether. 

The  Court  charged  tlic  jury,  that  having  heard  the  wliole 
of  the  witness'  testimoRv,  it  was  for  them  to  decide  as  to  the 
credit  they  wouM  give  him.  Should  they  be  satisfied  that  he 
(had  not  been  pi>e6ent,  and  had  sworn  corruptly  falsely  in  that 
^particular,  the}^  would  have  to  decide  whether  they  could 
confide  in  any  thing  he  had  sworn  te.     Defendant  excepted. 

Verdict,  guilty.     Judgment.     Appeal  by  defendant. 

A.ttorney  General  and  IF.  L.  Scott^  for  the  State. 
McLean  and  StarljueTc,  for  the  defendant. 

Peaksost,  C.  J,  Tlie  charge  of  his  Hon©r  ki  the  Court  be- 
low, is  in  strict  accordai^ee  with  the  principles  announced  m 
State  V.  WiUiaDis^  2  Jone«,  257. 

Upon  the  re-exauiinatioB  -of  tlie  subject,  which  was  elicited 
by  the  discussion  of  tlie  case,  kww  under  consideration,  we  are 
entirely  satisfied  that  the  conclusions  there  arrived  at,  areful- 
fly  sustained  by  authority,  analogy  and  prin^iple. 

The  maxim  '■'■falsum  m  ?m^,''"  &c.,  which  obtains  in  the 
•civil  law,  and  which  is  acted  upon  hj  the  ecelesiastieal  courts 
and  the  courts -of  adnsiralty  and  the  courts  of  equitj',  which 
are  fixed  tribunals  for  the  decision  of  questions  of  fact,  as  well 
as  questions  of  law,  has  not  been  adopted  in  the  common  law 
courts,  where  all  issues  of  fact  are  tried  by  a  jury,  and  where 
a  plain  lioe  of  deiimareatioii  is  kept  up  between  matter  which 


134  m  THE  SUPREME  COURT. 

Rodman  v.  Davis. 

affects  the  competency,  and  that  which  affects  the  credibili- 
ty of  witnesses.  It  is  the  exclusive  province  of  the  jury  to 
pass  on  the  credit  of  a  witness.  So,  if  he  has  made  a  differ- 
ent statement  when  not  on  oath,  and  when  on  oath,  or  if  be 
is  contradicted  by  other  witnesses  on  the  same  trial,  or  if  he 
admits  that  he  has  committed  murder  or  burglary  or  larceny. 
as  when  an  accomplice  is  examined,  the  principle  is  the  same; 
such  matter  goes  to  his  credit  and  not  to  his  competency;  his 
testimony  is,  therefore,  to  be  weighed  hj  the  jury,  and  they 
may  convict  upon  it,  provided  it  carries  to  their  minds  full 
and  entire  conviction  of  its  truth. 

The  subject  is  so  fully  discussed  in  the  ease  referred  to,  as 
to  make  it  unnecessary  to  enter  upon  it  again  ;  we  are  con- 
vinced that  such  is  the  rule  of  law. 

There  is  no  error.  This  opinion  will  be  certified,  to  the 
end,  that  the  Superior  Court  may  proceed  to  judgment  ac- 
cordingly. 

Pkr  Curiam,  Judgment  affirmed. 


JOHN  F.  EODMAN  v.  D.  A.  DAYIS. 

A  suit  at  law,  cannot  be  le-naofetl  into  this  Court  by  consent 

This  was  a  petition  for  a  certioraei,  hes^ird  before  Dick,  J., 
at  Fall  Term,  1860,  of  Rowan  Superior  Court. 

Upon  the  hearing  of  the  petition,  answer  and  aiiidavits>  his 
Honor  dismissed  the  petition.  It  was  agreed  that  the  plain- 
tiff should  have  until  January  1st,  1861,  to  file  affidavits. — 
Both  the  counsel  fur  plaintiff  and  defendant,  agreed  to  trans- 
fer the  case  to  the  Supreme  Court,  upon  the  facts  as  contained 
in  the  petition  and  answer. 

In,  the  view  of  this  case,  taken  by  the  Court,  it  is  deemed 


DECEMBER  TERM,  1860.  135 

Rodman  v.  Davis. 

unnecessary  to  set  out  the  contents  of  the  petition  and  an- 
swer. 

Miller  and  Kittrell^  for  the  plaintiff. 

Blachner\  for  the  defendant.  • 

Manly,  J.  This  case  seems  to  have  been  brought  into  this 
Court,  under  a  double  misapprehension  :  first,  as  to  the  analo- 
gy between  it  and  a  case  in  equity,  and  secondly,  as  to  the 
rule  in  equity,  for  removing  cases  to  this  Court. 

The  case,  after  judgment  below,  has  been  sent  here  hy  con- 
se7it.  This  cannot  be  done.  If  it  wore  a  case  in  equity,  a  re- 
moval by  consent,  after  a  decree  below,  for  the  purpose  of  re- 
vising that  decree,  would  be  inadmissible.  An  appeal  is  the 
remedy. 

Our  jurisdiction  in  law  eases,  is  entirely  appellate,  and  with; 
respect  to  a  case  like  the  one  before  us,  the  propriety  of  the 
judgment  in  the  Superior  Court,  would  be  tested  by  a  consid- 
eration of  the  evidence  before  that  Court  alone.  We  have  no 
means  of  knowing  what  that  evidence  was.  No  case  is  sent 
up  by  the  Court,  and  inasmuch  as  it  w^as  consented  that  pe- 
titioner might  file  affidavits,  until  the  first  of  January,  1861, 
we  are  unable  to  say  which  afiidavits  were  filed  before,  and 
which  after  the  judgment  below.  But  independently  of  this 
difl[iculty,  we  consider  the  mode  itself,  by  which  the  case  has 
been  brought  into  the  Court  irregular,  and  this  forbids  our 
taking  jurisdiction  of  it.  A  ease  at  law,  cannot  be  sent  here 
by  consent,  before  judgment,  nor  after  judgment. 

In  the  latter  case  (after  judgment)  it  is  brought  up  by  ap- 
peal, or  by  procedings  in  the  nature  of  an  appeal.  The  stat- 
ute, giving  law  jurisdiction  to  this  Court,  Rev.  Code,  ch.  33, 
6ec.  6,  uses  the  language,  "all  questions  of  law  brought  before 
it  by  appeal  or  otherwise  from  the  superior  court."  The  word, 
otherwise,  in  this  connection,  has  been  practically  held  to  mean 
nothing  more  than  proceedings  in  the  nature  of  an  appeal, 
such  as  a  "  certiorari.'''' 


136  IK  THE  SUPEEME  COURT. 

State  V.  Harris. 

JSTo  instance  is  known,  as  I  am  informed,  of  a<case  brought 
here  in  any  other  way. 

To  hold  that  questions  could  be  brought  up  by  the  consent 
of  parties,  irrespective- of  the  co-operation  of  the  court,  would 
be  totally  inconsistent  with  its  dignity,  and  with  the  true,  or- 
derly and  congruous  character  of  its  records. 

Another  difficulty  in  the  course  pursued  in  this  case,  is  that 
the  judgment  of  the  Superior  Court  is  not  vacated,  and  but 
for  a  faithful  adherence  to  some  understanding  of  the  par- 
ties, to  the  contrary,  the  case  might  be  finally  disposed  of 
while  we  are  considering  in  this  Court  the  questions  of  law 
said  to  be  involved  in  it. 

We  are  of  opinion  the  case  should  be  di-smissed  from  this 
Court,  and  this  opinion  certified  to  the  Superior  Court  of  Row- 
wan,  that  it  may  proceed  according  to  law. 

Pjer  Curiam,  Petition  dismissed. 


■STATE  V.  WILLIAM  HARRIS. 


Where,  upon  the  arraignment  of  one  for  murder,  it  was  suggested  that  the 

accused  was  a  deaf  mute  and  was  incapable  of  understanding  the  nature  of 

a  trial,  and  its  incidents  and   hia  rights  under  it,  it  was  Held  proper  for  a 

.  jury  to  be  empannelled  to  try  the  truth  of  these  suggestions,  and  on  such 

jjury's  responding  in  the  affirmative  of  these  suggestions,  for  the  Court  to 

decline  putting  the  prisoner  on  his  trial. 

Tins  was  a  preliminary  issue  on  a  case  for  mubdek,  tried 
before  Bailey,  J,,  at  the  Spring  Term,  1860,  of  Granville  Su- 
perior Court. 

The  defendant  was  indicted  for  the  murder  of  one  Richard 
Fowler,  and  upon  his  arraignment,  it  was  suggested  that  the 
prisoner  was  mute  by  the  visitation  of  God,  having  been  deaf 
and  dumb   from  his  birth.     This  fact  was  admitted  by  the 


DECEMBER  TEEM,  1860,  187 


State  V.  Harris. 


counsel  for  the  State,  who  moved  the  Court  to  direct  the  clerk 
to  enter  his  plea  of  "  not  guilty,"  and  that  the  trial  should 
proceed  on  that  issue.  The  defendant's  counsel  then  object- 
ed, that  he  was  not  able  to  plead  to  the  indichnent  and  was 
insane,  and  on  argument,  the  Court  refused  the  motion  of  the 
solicitor  for  the  State,  and  ordered  tiiat  a  jury  enquire: 
1st.  Whether  the  prisoner,  William  Harris,  is  able  to  plead 
to  the  indictment  preferred  agaii-nst  him.  2ndly.  Whether 
the  said  prisoner,  AVilliam  Hanis,  is  now  sane  or  not.  On 
the  trial  of  the  issues,  directed  to  be  submitted  to  the  jury  in 
this  case,  tlie  prosecution  called  sundry  witnesses,  M'ho  testi- 
fied, in  substance,  that  the  prisoner  had  been  a  deaf  mute 
from  his  infancy ;  that  he  was  then  between  iifty  and  sixty 
years  of  age,  and  had  a  comfortable  estate,  which  had  always 
been  under  the  management  of  a  guardian.  Tliat  when  the 
prisoner  was  about  fourteen  years  of  age,  his  mother,  with 
whom  he  lived,  intermarried  with  one  Moody  Fowler,  by 
whom  she  had  a  family  of  children,  amonsy  whom  was  Rich- 
ard  Fowler,  the  deceased ;  that  the  ]irisoner  continued  to  re- 
side at  the  house  of  his  step-father  after  he  arrived  at  the  age  of 
majority,  and  the  guardian  of  his  estate  paid  for  his  board  ;  that 
Richard  Fowler,  his  half  brother,  was  an  inmate  of  the  same 
house,  and  at  the  time  of  the  homicide,  and  for  some  3'ears  be- 
fore, was  a  married  man,  and  his  wife,  after  the  death  of  his 
mother,  some  t\3n  years  since,  had  been  the  housekeeper  of 
the  famil}'  ;  that  some  three  or  four  years  before  the  homi- 
cide, prisoner  ceased  to  lodge  in  the  house  of  Moody  Fowler,  and 
of  his  own  accord,  first  took  lodging  in  a  neighboring  barn, 
then  in  a  shelter,  which  he  erected  by  the  side  of  a  log,  and 
afterwards,  about  two  years  before  the  homicide,  lie  construct- 
ed a  small  hut  al)out  the  fourth  of  a  mile  distant  from  the 
house  of  Moody  Fowler,  in  which  he  lodged  until  brought  to 
prison  for  the  alleged  murder ;  that  these  lodgings  were  all 
ver3''  rude  and  uncomfortable,  and  especially,  the  first  two 
had  exposed  him  to  severe  suffering  from  cold  ;  that  during 
all  this  time,  he  continued  to  get  his  food  at  the  house  of  said 
Fowler,  and  either  ate  it  there  or  carried  it  witii  him  to  iiis 


138  m  THE  SUPREME  COURT. 

State  V.  Harris. 

lodgings ;  that  he  was  not  required  to  work,  but  sometimes 
had  worked  on  the  farm  and  did  his  work  intelligently ;  that 
he  spent  much  of  his  time  in  fishing,  both  with  hooks  and 
traps,  the  latter  of  which  he  constructed  and  placed  in  the 
water  himself,  and  in  hunting  with  a  gun  ;  that  he  could  stock 
guns  skillfully,  and  did  work  of  that  kind  for  himself  and  sev- 
eral neighbors,  from  whom  he  received  compensation  in 
money,  and  varied  his  charges  according  to  his  opinion  of 
their  ability  to  pay  ;  that  he  had  also  made  intelligent  and 
useful  suggestions  to  mill-wrights  when  engaged  in  the  me- 
chanical work  of  their  trade,  and  one  of  these,  a  witness,  tes- 
tified that,  in  his  opinion,  if  the  prisoner  had  been  educated, 
Jie  would  have  made  one  of  the  first  mechanics  in  the  country. 
These  witnesses  all  testified  that  they  considered  him  a  sensi- 
ble person  ;  that,  in  their  opinion,  he  knew  right  from  wrong, 
and  that  it  was  a  crime  to  take  the  life  of  another  person. — 
His  step-father,  Moody  Fowler,  testified  that  himself  and  oth- 
ers had  learned  to  communicate  with  the  prisoner  by  means 
of  signs ;  that  prisoner  knew  it  was  wrong  to  take  life,  and 
that  witness,  himself,  had  signified  it  to  him  very  often  before 
the  homicide,  and  that  the  prisoner  had  a  sign  to  indicate 
putting  to  death  by  hanging,  which  he  often  signified  would 
be  inflicted  on  a  person  who  should  kill  another.  He  also 
stated,  that  he  was  a  man  of  violent  temper,  and  generally 
carried  his  gun,  even  when  he  came  from  his  hut  to  the  house 
for  his  food,  and  some  four  or  five  weeks  before  he  had  at- 
tempted or  ofiered  to  shoot  the  deceased  in  the  dining  room 
of  his  house,  when  the  witness  interposed  and  prevented  him. 
Charity  Fowler,  the  widow  of  the  deceased,  stated  that  on  the 
evening  of  the  homicide,  her  husband  with  a  friend  had  taken 
supper  in  the  dining  room  and  walked  into  another  apartment 
of  the  house,  leaving  her  at  the  table  ;  that  the  prisoner  soon 
afterwards  came  in  with  his  gun,  seeming  to  be  very  angry; 
that  he  sat  down  and  declared  to  her,  by  a  sign,  that  he  would 
shoot  deceased  ;  that  she  remonstrated  with  him,  that  he  must 
not,  but  he  persisted  in  his  declaration.  She  then  called  to 
her  husband,  in  the  other  room,  and  told  him  not  to  coraue- 


DECEMBER  TERM,  186.0.  1S& 


State  V.  HariTS. 

in  there,  that  the  prisoner  said  he  would  shoot  him  ;  that  the 
deceased  enquired  what  she  said,  and  she  repeated  her  lan- 
guage, as  he  walked  into  the  dining  room,  when  the  prisoner 
lired  and  the  deceased  fell  and  died  immediately ;  that  pri- 
soner went  off  then  to  his  hut  and  did  not  come  to  the  house 
in  all  the  next  day  for  his  food,  which  he  never  failed  to  do 
before ;  that  on  the  day  fo.llowing  h©  came,,  when  he  was  ar- 
rested, deprived  of  his  gun  and  carried  to  prison. 

These  witnesses  also,  severally,  testilied  that  they  believed 
the  prisoner  knew  that  he  was  then  in  Court,  because  of  hav- 
ing killed  Richard  Fowler.  When  asked,  whether  they  be- 
lieved he  could  be  made  to  understand  the  contents  of  the 
bill  of  indictment,  sojii©  of  them  answered  that  they  believed 
he  could,  but  no  one  professed  to  able  to  communicate  them 
to  him;  others  doubted  as  to  his  ability  to  understand  this, and 
none  of  them  supposed  that  it  could  be  communicated  to  him 
that  he  had  the  rights  of  challenge  allowed  by  law,  nnd  that 
he  could  be  made  to  comprehend  the  testimony  of  the  wit- 
nesses and  cross-examine  or  contradict  them. 

The  prisoner's  counsel  also  called  several  witnesses,  who 
testified  that  the  prisoner  had  never  been  educated  in  any 
school  for  deaf  mutes — seemed  to  have  no  idea  of  responsibili- 
ty to  the  Supreme  Being — never  was  known  to  attend  church 
or  to  have  any  sense  of  religious  duty — spent  the  sabbath  fre- 
quently in  fishing  and  hunting,  and  liad  no  idea  of  moral  I'c- 
sponsibility.  The  witnesses,.  M'itii  the  exception  of  two,  stated 
that  they  believed  that  he  kaew  right  from  wrong,  and  that 
it  was  wrong  to.  kill  the  deceased.  They  did  not  believe  that 
he  could  be  made  to  understand  the  contents  of  the  indictment, 
or  why  he  was  brought  into  Court. 

Mr.  Cooke,  the  Principal  o.f  the  Asylum  for  the  deaf  and 
dumb  in  this  State,  was  examined,  and  said  that  he  had  en- 
deavored to  communicate  with  the  prisoner  by  natural  signs, 
and  found  him  cajxible  of  narrating  occurrences  which  he  had 
witnessed,  but  could  not  discover  that  he  had  any  idea  of 
moral  or  religious  responsibility  ;  that,  in  his  opinion,  he  could 
not  be  made  to  comprehend  the  indictment,  or  his  rights  ot* 


140  IN  THE  SUPREME  COURT. 


State  u.  Harris. 


-challenge,  or  cross-examination ;  that  deaf  rantes  were  very 
rarely  idiotic,  and  he  believed  the  prisoner  had  the  capacity 
of  ordinary  nnediicated  deaf-mutes. 

The  counsel  for  the  State,  moved  his  Honor  to  instrnct  the 
jury  :  1st.  That  if,  in  their  belief,  at  the  time  of  the  homicide, 
the  prisoner  knew  right  from  wrong,  and  that  it  was  wrong 
to  take  the  life  of  the  deceased,  that  they  should  find  botk 
issues  against  him.  2dl_y.  That  if  at  this  time  they  believed 
'the  prisonei'  knew  right  from  wrong,  and  it  was  wrong  to  take 
the  life  of  the  deceased,  tliey  should  find  both  issues  against 
him. 

The  p)'isoner's  counsel  moved  the  Court  to  charge  the  jury., 
that  if  they  believed  from  the  evidence,  that  the  prisoner  is 
now  of  unsound  mind,  so  that  he  cannot  understand  the 
charge  against  him  in  the  indictment,  and  cannot  understand, 
or  be  made  to  understand,  the  nature  and, purpose  of  the  trial 
and  of  his  rights  therein,  they  should  find  the  issues  an  his 
favor. 

The  Court  refused  the  instructions  prayed  by  the  State,  and 
gave  those  prayed  by  the  prisoner's  counsel.  The  solicitor 
excepted.  And  the  jury,  under  the  instruction's  aforesaid, 
found  both  issues  in  favor  of  the  defendant. 

Whereupon  the  Court  reciting,  that  it  appeared  to  him, 
that  the  said  Harris  was  incapable  of  being  brought  to  trial, 
ordered  that  this  fiiading  of  the  jury  should  be  certified  to  the 
County  Court  of  Granville,  to  the  end,  that  provision  should 
be  made  for  his  safekeeping  in  the  asylum  for  the  insane,  or 
•otherwise  according  to  law.  From  this  order,  the  solicitor 
appealed. 

Attorney  GenemJ,,  witli  whom  was  Grahmn^'ior  the  State, 
Miller  and  lieade,  for  the  defendant. 

OBattle,  J.  The  pi'oceedings  in  this  case  are  a  novelty  ifi 
the  administration  or  criminal  justice  in  this  State,  and  but 
for  the  light  which  is  thi^own  upon  them  by  «ome  recent  de- 


DECEMBER  TEEM,  1860.  141 


State  V.  HarnSh 


cisions  in  that  country  from  "which  our  common  law  is  derived, 
we  might  find  a  difficulty  in  dealing  with  them. 

In  Rex  V.  Dyson^  which  is  reported  in  2  Lewin's  Cr.  Cas.  64, 
and  also  in  a  note  to  Hex  v.  Pritchard^  32  Eng.  C.  L.  Rep. 
518,  the  prisoner  was  indicted  for  the  murder  of  her  bastard 
child,  by  cutting  off  its  head.  She  stood  mute;  and  a  jury 
was  empannelled,  to  try  whether  she  did  so  by  malice  w  by 
the  visitation  of  God  :  and  evidence  havinc:  b^en  griven  oi'  her 
always  having  been  deaf  and  dumb,  the  jury  found  that  she 
stood  mute  by  the  visitation  of  God. 

The  learned  Judge-  then  examined  a  witness  on  oath,  who 
swore  that  he  was  acquainted!  with  her,  and  that  she  could  be 
made  to  understand  some  things  by  signs,  and  could  give  her 
answers  in  the  same  way.  The  witness  was  then  swoi-n  as  fol- 
lows :  "  You  swear,  that  you  will  well  and  truly  interpret,  and 
make  known  to  the  prisoner  at  the  bar,  by  such  sigi>s,  ways 
and  methods,  as  shall  be  best  known  to  you,  the  indictment 
wherewith  she  stands  charged  ;  and  also,  all  such  matters  and 
things  as  the  Court  shall  require  to  be  made  known  to  her  ;  and 
also,  well  and  truly  to  interpret  to  the  Court,  the  plea  of  the. 
said  prisoner,  to  the  indictment,  and  all  answers  of  the  said 
prisoner  to  the  said  matters  and  things  so  required  to  be  made 
known  to  her,  according  to  the  best  of  your  skill  and  under- 
standing.    So  help  you  God." 

The  witness  then  explained  to  her,  by  signs,  what  she  was 
charged  with,  and  she  made  signs,  which  obviously  imported 
a  denial,  and  which  he  explained  to  be  so.  This  being  done, 
the  Judge  directed  a  plea  of  "  not  guilty"  to  be  recorded. — • 
The  witness  was  then  called  upon  to  explain  to  her,  that  she 
was  to  be  tried  by  a  jury,  and  that  she  might  object  to  such 
as  she  pleased  ;  but,  he  and  another  witness  stated,  that  it  was 
impossible  to  make  her  understand  a  matter  of  that  nature  ; 
though,  upon  common  subjects  of  daily  occurrence,  which 
she  had  been  in  the  habit  of  seeing,  she  was  sufficiently  in- 
telligent. One  of  the  witnesses  had  instructed  her  in  the 
dumb  alphabet,  but  she  was  not  so  far  advanced  as  to  put 
words  together,  and  the  witness  swore,  that,  though  she  was 


142  IN  THE  SUPREME  COURT. 

State  V.  Harris. 

then  incapable  of  understanding  the  nature  of  the  proceed- 
ings against  her,  and  making  her  defense,  yet  he  had  no  doubt 
that  with  time  and  pains,  she  might  be  taught  to  do  so  by  the 
means  used  for  the  instruction  of  the  deaf  and  dumb. 

The  Judge  (Mr.  Justice  J.  Paeke)  then  directed  the  jurj'-  to 
be  erapannelled  and  sworn,  to  try  whether  she  was  sane  or 
not ;  whereupon,  the  same  witnesses  were  sworn  and  examin- 
ed, and  proved  her  incapacity,  at  that  time,  to  understand  the 
mode  of  her  trial,  or  to  conduct  her  defense. 

The  Judge,  in  charging  the  jury  so  empannelled,  referred 
to  Lord  Hale,  who,  in  his  Pleas  of  the  Crown,  Vol.  1st,  page 
34,  says,  "If  a  man,  in  his  sound  memory,  commits  a  capital 
offense,  and,  before  his  arraignment,  he  becomes  absolutely 
mad,  he  ought  not,  by  law,  to  be  arraigned  during  such  his 
phrensy,  but  be  remitted  to  prison  until  tliat  incapacit}'  be  re- 
moved. The  reason  is,  because  he  cannot,  advisedly,  plead  to 
the  indictment.  And  if  such  person,  after  his  plea  and  be- 
fore his  ti'ial,  become  of  nonsane  memor}-,  he  shall  not  be 
tried  ;  or  if,  after  his  trial,  he  become  of  nonsane  memory, 
he  shall  not  receive  judgment;  or,  if  after  judgment,  he  be- 
come of  nonsane  memory,  his  execution  shall  be  spared  ;  for, 
were  he  of  sound  memorj^,  he  might  allege,  somewhat,  in  stay 
of  judgment  or  execution.  But,  because  there  may  be  great 
fraud  in  this  matter,  yet,  if  the  crime  be  notorious,  as  treason 
or  murder,  the  judge,  before  such  respite  of  trial  or  judgment, 
may  do  well  to  empannel  a  jury  to  enquire  ex  officio,  touching 
such  insanity,  and  whether  it  be  real  or  counterfeit."  The 
Judge  then  told  the  jury,  that  if  they  were  satisfied  that  the 
prisoner  had  not  then,  from  the  defect  of  her  faculties,  intel- 
ligence enough  to  understand  the  nature  of  the  proceedings 
against  her,  they  ought  to  find  her  "  not  sane,"  which  they  ac- 
cordingly  did.  His  Lordship,  thereupon,  ordered  her  to  be  kept 
in  strict  custody,  under  the  39  and  40  Geo.  3,  chap.  94,  sec.  2j 
till  his  magesty's  pleasure  should  be  known. 

A  siliiilar  caufee  occured  afterwards,  before  Baron  Aldeeson^ 
(See  Bex  v.  Pritchard,  7,  Car.  and  Payne,  303,  32  Eng.  C.  L; 
'Rep.  51Y)  when  he  refered  to  Bex  v.  Dyson^  and  said  the 


DECEMBER  TERM,  1860.  143 


State  V.  Harris. 


course  which  Mr.  Justice  Parke  had  pursued,  had  been  ap- 
proved of  by  several  of  the  Judges,  and  that  he  should  follow 
it.  He  accordingly  had  a  jury  empannelled,  and  told  them 
that  there  were  three  points  to  be  enquired  into.  "  First, 
whether  tlie  prisoner  is  mute  of  malice  or  not ;  secondly, 
whether  he  can  plead  to  the  indictment  or  not ;  thirdly,  wheth- 
er he  is  of  sufficient  intellect  to  comprehend  the  course  of  the 
proceedings  on  the  trial,  so  as  to  make  a  proper  defense ;  to 
know  that  he  may  challenge  any  one  of  you  to  whom  he  may 
object,  and  to  comprehend  the  details  of  the  evidence,  which, 
in  a  case  of  this  nature,  must  constitute  a  minute  investiga- 
tion. Upon  this  issue,  therefore,  if  you  think  there  is  no 
certain  mode  of  communicating  the  details  of  the  trial  to  the 
prisoner  so  that  he  can  clearly  understand  them,  and  be  able, 
properly,  to  make  his  defense  to  the  charge,  you  ought  to  find 
that  he  is  not  of  sane  mind.  It  is  not  enough  that  he  may 
have  a  general  capacity  of  communicating  on  ordinary  mat- 
ters." The  jury  returned  a  verdict  that  the  prisoner  was  not 
capable  of  taking  his  trial. 

We  have  stated  these  cases  with  more  than  usual  particu- 
larity, because  they  set  forth  clearly,  the  true  grounds  upon 
wliich  a  deaf  and  dumb  prisoner,  whose  faculties  have  not 
been  improved  by  the  arts  of  education,  and  who,  in  conse- 
sequence  thereof,  cannot  be  made  to  understand  the  nature 
and  incidents  of  a  trial,  ought  not  to  be  compelled  to  go 
through,  what  must  be  to  hira,  the  senseless  forms  of  such  a 
trial.  Whether  arising  from  physical  defect  or  mental  disor- 
der, he  must,  under  such  circumstances,  be  deemed  "  not 
sane,"  and  of  course,  according  to  the  great  authority  of  Lord 
Hale,  he  ought  not  to  be  tried.  The  allowance  to  prisoners 
in  this  State  the  full  benefit  of  counsel  in  every  thing  con- 
nected with  their  trial,  has  not  been  deemed  suflicient  to  change 
the  law  as  to  one  mentally  insane,  and  we  think  it  cannot  have 
that  eftect  in  a  case,  like  the  present,  of  a  defect  of  the  physi- 
cal faculties.  The  proceedings  in  the  present  case,  including 
the  instructions  given  to  the  jury  by  the  presiding  Judge,  are 
substantially  the  same  as  those  in  the  English  cases  to  which 


144  m  THE  SUPREME  COURT. 

Myers  v..  Cherry. 

we  have  referred,  and  we  now  declare  our  approbation  of. 
them. 

It  wnll  be  borne  in  mind,  however,  that  when  a  jury  i&  em- 
pannelled  in  this  State,  in  the  case  of  a  deaf  and  dumb  priso- 
ner, there  is  no  need  of  an  issue  to  enquire,  whether  he  stands 
mute  of  malice,  because,  even  if  he  could  speak,  and  yet  stood 
mute  designedly,  the  Court  mu&t  order  the  plea  of  "not  guilty" 
to  be  entered  for  him,  as  required  by  the  Rev.  Code-,  oh.  35,, 
sec.  29. 

It  must  be  certified  to  the  Court  below,  that  there  is  no  cr- 
]for  in  the  record. 

Pee.  Curiam,  Judgment  affirmed.. 


JOHN  R.  MYERS  v.  S.  B.  CHERRY. 

Where  the  question  between  the  parties  was,  whether  the  plaintiff  had  agreed 
with  a  third  party  to  take  him  for  the  performance  of  the  contract  sued' 
on,  instead  of  the  defendant,  and  the  tender  of  a  sum  of  money  by  such 
third  party,  and  its  refusal  and  the  concomitant  expressions  of  the  plaintiff, 
were  relied  on  against  him,  it  was  Held  that  a  receipt  prepared  by  him 
and  offered  as  the  condition  on  which:  he  would  receive  the  money,  was 
competent  evidence. 

This- was  an  action  of  assumpsit,  tried  before  Howard,  J., 
at  th©  last  Spring  Term  of  Beaufort  Superior  Court. 
The  action  is  brought  against  the  defendant  assurviving  partner 
of  the  firm  of  Braswell  &  Cherry,  and  the  plaintiffs  declared, 
1st,  upon  a  special  contract  to  pay  plaintiff's  for  carrying  the 
mail,  as  set  forth  in  the  evidence,  from  July  1st,  1856,  to  Oc- 
tober 1st,  1856,  and  also  in  the  common  counits  for  work  and 
labor  done.  Braswell  &  Cherry  obtained  a  contract  from,  the  . 
general  government  to  carry  the  mails  from  Washington  to 
Wilson  via  Greenville,  for  the  four  years,  commencing  July 
1st,  1855,  and  ending  July  1st,  1859,  and  they  were,  by  terms 


DECEMBER  TERM,  1860.  145 


Mjers  V.   Cherry. 


of  the  contract,  to  cmry  tliem  from  Washington  to  Greenville 
b_y  steamboat. 

Phiintiffs  owned  8/ steamboat  running  between  these  points, 
and  they  contracted  with  Braswell  &  Cheriy  tO'  cai-ry  the 
mails,  each  wa^',  six  times  a  week  forfoar  years,  commencing 
July  1st,  1855,  for  the  sum  of  $1250,  to  be  paid  quarterly. 
Plaintiffs  complied  with  the  contract  up  to  October  1st,  1856, 
and  Braswell  &  Cherry  paid  up  regularly  each  quarter  for 
the  first  four  quarters,  but  refused,  to  pay  for  the  fifth.  Bras- 
well died  in  May,  1856. 

The  defendant  then  introduced  J.  J.  B.  Pender,  who  testi- 
fied that  on  the  1st  of  July,  1856',  he  bought  of  Cherry,  sur- 
viving partner  of  Braswell  &  Cherry,  all  the  liorses,  coaches, 
iSzc,  belonging  to  the  mail  line,  from  Washington  to  Wilson, 
and  gave  Cherry  a  bond  to  faithfully  execute  the  contract 
with  the  general  government  ;  tiiat  he  wrote  to  the  plaintiffs 
stating  the  purchase,  and  proposing  to  continue  the  contract; 
that  plaintiffs  sent  him  word  that  they  M'ould  be  up  and  see 
liim  ;  that  ho  wrote  to  the  plaintiffs  several  letters  and  receiv- 
ed answers,  one  of  which  letters,  was  as  follows : 

"  Gekenville,  July  1st,  1856. 
"^[r.  John  Myers— Dear  Sir:  Yours  of  the  2nd  instant,  is 
received ;  in  reply,  I  wish  you  to  continue  carrying  tlve  mails 
as  heretofore,  until  I  see  you,  which  will  be  soon  as  I  can  o-et 
my  business  arranged  here,  and  in  the  mean  time,  please 
inform  me  whether  or  not  you  will  do  so.  Direct  yours  to 
this  place.  Yours  respectfully, 

Jos.  Jno.  Pender." 
The  witness  further  swore,,  that  between  the  8th  and  15th 
of  July,  one  of  the  plaintiffs,  R.  L.  Myers,  came  to  Tarboro'. 
the  residence  of  the  witness,  and  submitted  to  him  a  contract, 
in  writing,  to  carry  the  mail  for  the  balance  of  the  four  years; 
that  he  refused  to  bind  himself  for  any  particular  time,  but 
told  Myers  to  go  on  as  they  had  been  doing ;  that  lie  seemed 
to  get  angry,  and  told  him  that  he  should  go  to  Washington 
City  and  oppose  the  transfer  of  the  contract  to  him,  Pender, 
and  immediately  kft ;  that  at  the  tim^  of  the  payment  for 

10 


146  IN  THE  SUPKEME  COURT. 

Myers  v.  Cherry. 

the  quarter,  he  went  to  plaintiffs  and  offered  to  pay,  but  did 
not,  because  they  would  not  give  him  a  receipt  in  his  own 
name,  and  insisted  on  his  receiving  a  paper  which  he  did  not 
like.  The  plaintiffs'  counsel  then  showed  the  witness  a  re- 
ceipt, in  words  and  figures  following,  viz  : 

"  Received,  Washington,  N.  C,  8th  October,  1856,  of  Mr. 
T.  R.  Cherry,  surviving  partner  of  Braswell  and  Cherry,  by 
the  hands  of  J.  J.  B.  Pender,  three  hundred  and  twelve  dol- 
lars and  59  cents,  in  full  for  mail  service  by  steamboat  "  Gov- 
ernor Morehead,"  for  one  quarter,  ending  30th  September, 
1856,  $312,59.  John  Myers  &  Son." 

And  asked  him  if  the  plaintiffs  did  not  offer  to  accept  the 
money  and  give  him  that  receipt.  Witness  answered,  that 
they  offered  to  receive  the  money  and  to  give  him  a  paper, 
perhaps  that,  but  that  he  could  not  identify  it.  Thomas  My- 
ers testified,  that  the  receipt  produced,  was  the  paper  offer- 
ed ;  that  he  was  present  at  the  time  it  was  offered,  made  a 
memorandum  on  it  and  preserved  it. 

The  defendant's  counsel  objected  to  the  production  of  the 
receipt,  to  the  questions  about  it,  and  to  its  being  read  to  the 
jury,  but  the  Court  over-ruled  the  objection.  Defendant's 
counsel  excepted. 

Yerdict  and  judgment  for  plaintiff.     Appeal  by  defendant. 

Rodman  for  plaintiffs. 
Warren  and  Donnelly  for  defendant. 

Manly,  J.  Upon  the  trial  before  the  jury  in  the  Superior 
Court,  the  case  was  made  by  the  parties  to  turn  upon  the  en- 
quiry, whether  J.  J.  B.  Pender  had  been  substituted  for  de- 
fendant in  his  contract  with  plaintiffs,  and,  conseqently, 
whether  Pender  was  the  debtor  instead  of  defendant.  To  es- 
tablish the  affirmative  of  this  enquiry,  the  defendant  intro- 
duced Pender,  who,  in  the  course  of  his  testimony,  stated  that 
he  had  offered  to  pay  the  quarter's  dues  for  which  this  ac- 
tion is  brought,  but  he  had  not  paid  it,  because  plaintiffs  were 
unwilling  to  give  him  such  a  receipt  as  he  wished. 


DECEMBER  TEEM,  1860.  147 

Townsend    v.   Moore. 

Upon  the  cross-examination,  the  receipt  was  produced  and 
identified  as  the  one  in  question.  The  defendant  objected  to 
its  introduction,  and  the  over-ruling  of  this  objection  is 
the  ground  for  the  single  exception,  which  appears  upon  the 
record. 

The  evidence  is  clearly  admissible.  The  defendant  attempt- 
ed to  show  that  Pender  was  accepted  as  the  debtor,  by  show- 
ing that  plaintiffs  negotiated  with  him.  It  was  surely  com- 
petent for  plaintiff's  to  show  in  reply,  in  what  capacity  they 
treated  with  him.  The  receipt  was  competent  for  that  pur- 
pose, as  a  declaration  made  at  the  time,  and  constituting  a 
part  of  the  res  geska  j  and  is  also  competent  as  the  best  evi- 
dence of  a  matter  which  the  defendant  had  attempted  to 
prove,  viz.,  the  purport  of  the  receipt.  In  either  point  of 
view,  the  evidence  was  admissible,  and  there  is  no  ground  for 
the  exception. 

Per  Curiam,  Judgment  affirmed. 


ALEXANDER   TOWNSEND,  Admr.,   v.    ROBERT   S.    MOORE,  et  al. 

Before  a  will  can  be  received  by  our  courts,  as  having  been  established  by  a 
tribunal  in  another  State,  it  must  appear  by  the  record  that  such  will  was 
duly  passed  on  by  it,  and  that  such  tribunal  was  the  court  of  probate  of 
the  domicil. 

Tins  was  a  motion  in  the  County  Court  of  Robeson,  to  have 
recorded  a  paper-writing,  purporting  to  be  a  copy  of  the  last  will 
and  testament  of  Robert  Pittman.  The  order  was  made  ac- 
cordingly, and  the  defendants  appealed  to  the  Superior  Court, 
where  Saunders,  J.,  refused  the  motion  with  costs,  and  the 
plaintiffs  appealed  to  this  Court. 

The  decedent,  according  to  the  language  of  the  paper- writing 
offered,  had  lived  in  Robeson  County,  North  Carolina,  but 
then  was  of  St.  Clair  County,  Alabama.  The  basis  of  this 
application  was  this  certificate .' 


148  IN  THE  SUPEEME  COUET. 

Townsend  v.  Moore. 

"  State  of  Alabama,  St.  Claik  County. 
"  Personally  appeared  before  me,  James  Eogan,  Judge  of 
the  County  Court  of  said  county,  John  F.  Dill  and  C.  C.  Far- 
rar,  two  of  the  subscribing  witnesses  to  the  M'ithin  will,  who, 
being  duly  sworn,  deposeth  and  saith  that  they  were  present  at 
the  time  said  will  was  signed,  and  that  they  saw  the  same  sign- 
ed and  acknowledged  by  Eobert  Pittman,  for  the  purposes 
therein  contained,  and  that  the  said  Eobert  Pittman  was,  at  the 
time  of  signing  the  same,  of  sound  mind,  John  F.  Dill, 

C.  C.  Faerab, 
Sworn  to,  and  subscribed  before  me, 
this  30th  day  of  June,  1838. 

James  Eogan,  Judge  of  County  Court." 
Also,  this  further  certificate. 

"^^""^^clrJ^irSunty  }  ^^'^^^^^  ^^"'*'  ^^^^^'^'  T^''^^'  ^^^^' 
Then  was  this  will  admitted  to  probate,  and  ordered  to  be 
recorded.  Thomas  Ehodes,  Cl'k." 

"State  of  Mississippi,    ) 
Carroll  County.  ) 

I,  A.  M.  ISTelson,  Clerk  of  the  probate  Court,  of  said  coun- 
ty, hereby  certifiy  that  the  foregoing  is  a  true  and  correct 
copy  of  the  last  will  and  testament  of  Eobert  Pittman,  deceas- 
ed, as  the  same  appears  of  record  in  my  office  with  book  A, 
page  13.  Given  under  my  hand  and  the  seal  of  office,  at  Car- 
rollton.     February  21st,  1857." 

Then  comes  the  certificate  of  the  Judge  of  the  probate 
Court,  11  July,  1857,  to  the  effect  that  Mr.  Nelson,  was  the 
clerk,  "duly  commissioned,  and  that  full  faith  and  credit 
should  be  given  to  his  official  acts."  Signed  by  JoseJ)h  Drake, 
Judge  of  the  Carroll  probate  Court. 

Upon  this  evidence  the  Court  refused  to  have  the  paper- 
writing  admitted  to  record.  Whereupon  the  plaintifis  ap- 
pealed. 

No  counsel  appeared  for  the  plaintiff  in  this  Court. 
Fowle,  for  the  defendant. 


DECEMBER  TERM,  1860.  149 

Townsend  v.  Moore. 

Manly,  J.  Under  the  provisions  of  the  Revised  Code,  ch, 
119,  sec.  17,  the  will  of  one,  domiciled  in  another  State,  ad- 
mitted to  probate  there  according  to  the  requirement  of  the 
law,  will  be  admitted  in  the  courts  of  this  State,  as  proved  in 
respect  to  personalty,  and  put  upon  the  records-  To  entitle  a 
case  to  this  comity,  it  ie  necessary,  however,  that  the  will 
should  ho,  proved  at  the  place  of  the  domicil,  and  that  an  ex- 
■emplilkation  of  tlic  will  and  probate  should  be  duly  certi- 
fied to  lis  hy  the  proper  officers  of  the  court,  with  the  infor- 
mation tliat  it  is  in  due  form.  It  will  then  become  the  duty 
of  an}'  court  m  this  Stato,  where  there  are  goods  of  value 
belonging  to  the  deceased,  to  spread  it  upon  its  records  and 
issue  lettei's  thereon.  The  law,  in  rospect  to  such  matters,  in 
vjew,  especially,  of  our  statute  iaw  uix>n  the  subject,  was 
fully  discussed  in  Jbpnan  v.  GasMns^  5  Ired.  267,  and  in 
Dral'e  v.  Merrill^  2  Jones,  368.  We  deem  it  unnecessary, 
therefore,  to  say  moi-e  at  present. 

Referring  to  the  documents  now  before  us,  it  will  be  seen 
that  the  testator  was  of  St.  Clair  county,  Alabama,  where  a 
,probate  i«  first  had  of  his  will,  it  then  seems  to  have  been 
4)ropounded  in  some  f®rm,  in  'Carroll  county,  Mississippi, 
nv'hei^  it  was  Jidmitted  to  probate  also.  The  copy,  which  we 
^lave,  is  from  Mississip)^>i,  awd  is  certified  by  the  clerk  of  the 
jirobate  Court  for  Carroll  count}^  to  be  a  true  copy.  We  are 
futiable  to  discover  from  its  contents,  whether  the  original,  or 
:a  copy  was  sent  to  Mississippi,  but  in  either  case  the  exemplifi- 
cation sent  us  is  not  a  compliance  witli  the  law.  In  the  absence 
«®t  the  origiiial,  (whieli  we  suppose  might  have  been  'brought 
onto  North  Carolina  and  proved)  it  is  proper  that  we  should 
iliave  a  eepy  and  an  e-xemplification  of  the  proceedings,  pro- 
perly certified  from  the  'Court  of  probate,  at  the  domicil. 
At  best,  we  have  onl}^  a  certificate  from  the  Court  of  Carroll 
ceunty  that  certain  matter  was  certified  to  that  Court.  A  co- 
py of  a  copy,  in  record  evidence,  is  inadmissible.  Whether  it 
bedwly  proved  according  to  the  law  of  the  domicil,  we  are 
not  informed.  It  is  indispensable  that  the  probate  Court  in 
Alabama  jsiiouJd  adjudge  the  paper,  upon  the  proofs,  to  belhe 


18^  IN  THE  SUPKEME  COUKT. 

State  V.  Sam. 

last  will  and  testament  of  the  deceased,  and  that  this  should 
be  certified  directly  to  us. 
There  is  no  error. 

Pee  Curiam,  Judgment  affirmed. 


STATE  ^^.  SAM  (a  slave.) 

In  order  to  show  that  a  witness  in  a  eawse  was  excited  at  the  horrible  crime- 
alleged  against  a  slave,  aad  was,  therefore,  not  fully  to  foe  relied  on,  it  was 
Held  competent  to  ask  him,  on  cross-examination^  whether  he  had  not  ta- 
ken up  and  whipped  other  negroes. 

In  order  to  weaken  the  force  of  a  witness''  evidene©  o®  cross-examination,, 
it  was  Held  competent  to  show  bis  teniper  and  feeKng  towards  the  cause, 
independently  of  any  prejudice  or  ill-will  towards  the  accused,  personally. 

Tins  was  an  indictment  for  mfkdek,  tried  before  Howardv 
J.,  at  the  last  Superior  Court  of  Bertie  county. 

The  prisoner  was  indicted  and  put  on  trial  with  two  others, 
Noah  and  Perry,  for  tfoe  murder  of  one  Geoi'ge  Askew,  by  burm- 
ing  the  house  in  which  he  was  asleep.  There  was  a  couM 
charging  the  death  to  have  been  prodnced)  by  a  blow  from  a 
stick. 

On  the  trial,  one  Joseph  B.  Kuffin  gave  tesHmoay  as  tO'  tb© 
confessions  of  Sam.  Upon  his  ei'oss-examination,  Ruffin  was 
asked  by  the  prisoner's  counsel,  "■if  be  had  not  taken  up  and 
whipped  other  negroes  in  the  neighborhood."  This  questio'is 
was  objected  to  by  the  counsel  for  the  State. 

The  Court  asked,  "  what  is  the  purpose  of  the  question." 

Defendant's  counsel  answered,  "  to  show  that  he  has  beee 
very  active  about  the  matter." 

The  Court  rejoined,  "  if  he  has,  it  is  nothing  to  his  discredit."". 

The  testimony  was  ruled  out,  and  the  prisoner's  counsel 
excepted;. 


DECEMBER  TERM,  1860.  151 

State  V.  Sam. 

There  were  raauy  other  exceptions  on  the  trial,  but  as  this  is 
the  only  one  treated  of  by  this  Court,  it  is  not  deemed  proper 
to  set  them  out.  A  iiolle  prosequi  was  entered  as  to  Noah, 
Perry  was  acquitted,  and  a  verdict  of  guilty  as  to  Sam,  who, 
upon  judgment  being  given  against  him,  appealed. 

Attorney  General^  for  the  State. 
Wmsto7i,  f/r.,  for  the  defendant. 

Peakson:,  C.  J.  Any  evidence  is  competent,  which  tends 
to  show  the  feeling  or  bias  of  a  witness  in  respect  to  the  party 
or  the  cause;  for  the  jury  ought  to  be  put  in  possession  of 
every  fact  which  will  enable  them  to  form  a  proper  estimate  of 
the  witness ;  not  merely  in  reference  to  his  honesty,  but  to 
the  degree  of  reliance  that  can  be  placed  on  his  accuracy,  and 
to  what  extent  allowance  should  be  made  for  the  probability 
of  misapprehension,  or  the  danger  that  the  witness  had  receiv- 
ed wrong  impressions,  owing  to  an  excited  state  of  feeling. 
Every  one,  no  matter  how  honest  he  may  be,  is  more  apt  to 
fall  into  error  after  he  has  "  taken  sides"  in  feeling  or  in  ac- 
tion, than  wliile  he  remained  neutral.  On  this  account,  every 
witness  was  required  by  tlie  common  law  to  give  his  testimo- 
ny in  the  presence  of  the  jury,  and  to  be  subject  to  cross-ex- 
iimiiiation  ;  so  that  they  could  look  at  him  ;  note  his  demean- 
or, and  have  every  opportunity  of  testing  whether  he  was  un- 
der the  influence  of  feeling,  and  thus  be  able  to  form  an  opin- 
ion how  far  he  was  to  be  relied  on.  Indeed,  the  chief  excel- 
lence of  a  trial  by  jury,  consists  in  the  fact,  that  being- 
judges  of  human  nature,  when  put  in  possession  of  all  the 
circumstances  that  ma}',  or  are  calculated  to  influence  the 
feelings  of  a  witness,  or  to  show  a  bias  either  for  or  against  a 
party,  or  in  reference  to  the  one  side  or  the  other  of  tlie  case, 
which  is  on  trial,  the  jury  can  better  "weigh  his  testimony,'' 
and  pass  on  the  degree  of  credit,  to  wiiich  a  witness  is  enti- 
tled, than  any  one  man,  no  matter  how  learned  he  may  be 
in  the  law.  It  is  on  this  principle  that  the  rule,  above  stated, 
is  based.     It  is  to  be  met  with  in  all  the  text  books,  and  in  State, 


152  m  THE  SUPEEME  COURT. 

State  V.  Sam. 

V,  Pattevson^  2  Ire. -346,  it  -is  held,  that  although  a  witness 
cannot  be  contradicted  as  to  matters  merely  collateral,  drawn 
out  on  cross-examination,  3'et,  when  the  cross-examination  is 
as  t© -matters  which,  although  collatera.1,  temd  to  show  the  tem- 
per^  disposition  or  eonduct  of  the  witness  in/felaiion  to  the  cause 
or  the  ixtrties^  the  witness  may  be  contradicted.  Both  kinds 
of  evidence  are  admissible  on  cross-examination,  but  the  lat- 
ter is  put  on  higher  ground  than  the  former,  for  it  enters  into 
and  forms  a  part  of  the  issue ;  liadford  v.  Rlce^  2  Dev.  and 
Bat.  39.  On  the  cross-examination  of  the  witness,  Rufiin,  the 
prisoner's  counsel,  for  the  purpose  of  showing  tliat  he  liad 
been  very  active  in  regard  to  the  prosecution,  proposed  to 
ask  him,  "  if  he  had  taken  up  and  whipped  other  negi'oes  in 
the  neighborhood."  The  solicitor  for  the  State  objected.  The 
'Court  said,  "  if  he  has,  it  is  nothing  to  his  discredit,"  and  re- 
jected the  evidence.  Jn  this,  there  is  error.  By  the  word, 
"  discredit,"  we  do  not  understand  his  Honor  to  have  expressed 
an  opinion  as  to  the  degree  of  credit,  to  which  the  w^itness  was 
entitled,  but  tohave  used  the  word  in  the  sense  of  not  beina;  cen- 
surable, or  to  be  blamed,  if  he  had  talvcn  up  and  whipped  other 
negroes  in  the  neighborhood,  touching  the  crime  tlien  under 
investigation.  Whether  such  conduct  was  censurable  or 
.praiseworthy,  is  not  a  question  of  law,  and  is  a  matter  about 
which  there  may  be  a  difference  of  opinion.  So,  we  lay  no 
■  stress  upon  it,  further  than  to  say,  such  remarks  should  not 
'Come  from  the  bench,  because  tliey  are  apt  to  betray  feelings 
His  Honor  fell  into  error,  either  because  he  had  misconceived 
the  extent  of  tlie  rule, -or  in  making  an  application  of  it.  If 
lie  supposed  the  rule  required  that  the  question,  in  order  to 
be  relevant,  sliould  tend  to  show  the  disposition  or  feeling  of 
the  witness  towards  the  prisoner,  individually,  he  was  mista- 
ken as  to  its  extent,  for  it  embraces  the  feeling  of  the  witness 
in  respect  to  the  cause  as  well  as  the  party.  When  a  witness 
has  become  so  much  excited,  by  reason  of  a  horrible  crime 
that  has  been  committed,  as  to  be  induced  "  to  take  up  and 
whip  negroes,"  for  the  purpose  of  ferreting  out  the  offenders, 
his  excited  state  of  feeling  cen'tainly  would  have  a  tendency 


DECEMBER  TERM,  1860.  WSX 


Biiliard  v.   Mitchell, 


to-iBakehis  testimony  less  reliable,  because  <he  would  be  more 
apt  to  misapprehend  conversations,  imbibe  Avrono;  impres- 
sions, and  jump  to  conclusions  on  insutHcient  premises,  and 
both  the  pi'incijde  of  the  rule,  and  the  terms,  in  whicli  it  is 
laid  down,  recpiirc  that  tlic  tact  of  his  having  become  so  ex- 
cited siiould  be  made  known  to  tlie  jury,  and  the  circum- 
stance, tliat  lie  had  no  jn'cvions  ill-will,  or  bad  feeling  towards 
the  prisoner,  .in  particular,  can  only  have  the  effect  of  show- 
ing a  less  degree  of  bias,  in  the  same  way  that  a  feeling, 
both  in  relution  to  the  cause  and  agaiust  the  prisoner,  would 
tend  to  sliow  a  greater  degree  of  bias. 

If  Ins  Honor  had  a  correct  idea  of  the  extent  of  the  rule., 
th«n  lie  certainl3'-  erred  in  making  the  application,  for  it  is 
manifest  that  the  testimonyof  a  witness,  who  has  become  ex- 
cited in  respect  to  a  particular  subject,  and  has  taken  an  ac- 
tive part  in  respect  to  a  prosecution,  is  not  so  much  to  be  re- 
lied on,  in  reference  to  its  accuracy,  as  that  of  a  witness,  wIim 
liad  not  taken  sides  or  been  active  in  the  matter.  Conse- 
quently, tlie  evidence  was  relevant,  and  ought  to  have  been 
received,  so  as  to  allow  the  jury  to  j)ass  on  the  weight  to 
which.it  was  entitled.  For  this  reason,  the  prisoner  must 
have. another  trial ;  for  although  he  may  be  guilty,  his  guilt 
has  not  been  proved  according  to  law. 

Pkr  CriiiAM,         Judgment  reversed,  and  a  veniie  denova. 


M.  B.  BALLARD  v.  WALDO  &  MITCHELL. 

Where  an  action  of  trespass  CJ.  C.  i'.,  was  referred  to  arbitrators,  autl  they 
found  the  title  to  the  Rkus  in  quo  in  the  ])laintill',  and  assessed  damages,  it 
was  Held  a  siitricient  finding,  and  that.it  Avas  not  necessary  for  them  to  fix 
the  boundaries  between  the  parties. 

Where  a  suit  was  referred  to  arbitrators,  and  they  awarded  damages  and 
costs  to  the  plainiifi;  1,his  was  Held  to  include  a  finding  ctf  all  issues  in  Ills' 
Cavor. 


154  IN  THE  SUPREME  COURT. 

Ballard   v.  Mitchell. 

This  was  an  action  of  tresjMss  quare  clausimi  f  regit,  brought 
to  the  Superior  Court  of  Martin  county,  at  Spring  Term,  1860. 

The  following  pleas  were  entered  :  "  General  issue,  license, 
accord  and  satisfaction,  and  gtatute  of  limitations."  At  the 
same  term  the  following  entry  was  made  on  the  docket :  "  Re- 
ferred to  arbitration,  order  of  survey,  each  party  to  choose  his 
own  surveyor,  or  to  unite  upon  one  at  their  election."  The 
arbitrators  were  selected,  and  at  the  same  term  the  following 
notice  issued  to  them  : 

"  To  Ameleck  C.  Williams  and  William  R,  Brown,  greeting : 
Ordered  that  the  three  above  causes  be  referred  to  you  with 
an  umpire  to  be  chosen  by  you,  if  necessary,  to  hear  and  de- 
cide all  matters  in  controversy  therein,  and  your  award  shall 
be  a  rule  of  court,  and  the  parties  bind  themselves  not  to  re- 
voke this  reference. 

Witness,  W.  W.  Anderson,  clerk  of  our  said  Court  at  of- 
fice in  Williamston,  on  the  last  Monday   of  February,  1860." 

W.  W.  Andrews,  C.  S.  C. 

There  were  on  the  docket,  besides  this  one,  two  other  cases, 
in  which  the  present  plaintiff  was  defendant,  and  the  present 
defendants  were  plaintiffs,  and  these  are  the  cases  included  in 
the  reference.  They  are  designated  in  the  award  as  cases  nos. 
1  and  2,  and  were  also  actions  of  trespass  involving  the  title 
to  the  same  land  as  the  present  suit.  The  following  is  the 
award  as  returned  to  this  Court. 

"  The  undersigned  referees,  in  obedience  to  the  above  order 
of  tlie  Court,  met  on  Monday  the  20tli  of  August,  1860,  to 
hear  and  determine  the  above  causes  referred  to  us,  and  all 
the  above  causes  were  continued  over  until  Tuesday  morning, 
0  o'clock,  on  afhdavit  of  Henry  Mitchell.  On  Tuesday  morn- 
ing, 9  o'clock,  we  met  upon  an  island,  called  High  Island,  at 
the  lower  end  of  the  field  now  owned  by  David  Parker,  and 
proceeded  to  hear  and  determine  the  above  causes  referred, 
when  both  parties  announced  themselves  as  ready  for  trial, 
and  after  a  patient  and  thorough  investigation  of  the  title,  and 
evidence  on  both  sides,  we,  the  referees,  are  of  opinion,  and  so 
adjudge  and  award,  that  the  plaintiff,  in  causes  no.  1  and  no. 


DECEMBER  TERM,  1860.  155 


Ballard  v.   Mitchell. 


2,  are  not  entitled  to  any  damage,  and  that  the  land  in  ques- 
tion, from  our  best  judgment,  is  the  jiroperty  and  estate  of 
Martin  13.  Uallard,  and  that  Briery  Branch,  beginning  at  the 
road,  runs  down  said  branch  to  a  gum  and  cypress,  and  then 
down  to  and  around  a  high  island  at  the  lower  end  of  Ste- 
phens' hole  at  a  cypress  stump  on  a  drain,  standing  about  ten 
or  twelve  feet  from  the  creek,  as  shown  to  be  the  corner 
of  the  AVhitloy  and  Monk  land.  In  case  no.  3,  wg  are  of 
opinion  that  the  plaintitf,  Martin  B.  Ballard,  is  entitled  to  re- 
cover of  the  defendants,  Waldo  and  Mitchell,  the  sum  of  five 
hundied  and  seventy-seven  doHars  and  fifty  cents,  ($577.50  ;) 
and  that  the  said  Waldo  and  Mitchell  pay  the  costs  of  the 
above  referred  suits. 

AVe  further  certify,  that  before  the  trial  of  the  above  causes,  we, 
the  referees,  selected  by  consent  of  all  parties.  Shepherd  R. 
Spruill  as  umpire,  who  acted  with  us  in  the  investigation  of 
the  same.  All  of  whicli  is  respectfully  submitted.  Signed 
by  the  ai'bitrators  and  the  umpire." 

The  award  was  returned  to  Fall  Tern),  1860,  of  the  Superi- 
or Court,  Hkatu,  J.,  presiding,  and  plaintiff  moved  for  judg- 
ment pursuant  to  the  award.  Defendants'  counsel  resisted 
the  motion,  and  filed  exceptions  to  the  award,  of  which  the 
following  only  are  necessary  to  be  set  out :  "  6.  The  award  is 
not  full ;  it  does  not  cover  all  the  matters  in  controversy,  es- 
pecially, it  does  not  determine  the  boundaries  of  the  lands  of 
plaintitf  and  defendants,  nor  lix  the  boundaries  between  the 
parties." 

"  7.  Tiie  award  does  not  pass  on  all  the  issues  in  the  causes, 
between  the  parties." 

The  Court,  upon  consideration  of  the  premises,  confirmed 
the  award  in  the  case  of  Itallard  v.  Waldo  and  Mitchell^  the 
award,  as  to  the  other  two  cases,  having  been  set  aside  by 
consent  of  plaintitf,  on  motion  of  defendant. 

Judgment  for  plaintitf".     Appeal  by  defendant. 


Winston^  Jr.^  for  the  plaintiff". 
Rodman^  for  the  defendants. 


156  IN  THE  SUPREME  COURT. 


Ballard  v.   Mitchell. 


Battle,  J>  Most  of  the  ebjections  to  the  award,  made  in 
tlie  Court  b^low,  were  addressed  to  the  discretion  of  the 
J«di;-e  presiding  in  that  Court,  and  are  admitted  by  the  coun- 
sel, not  to  be  tlie  subject  of  review  in  this  Court.  The  only 
oxceptions  to  which  our  attention  has  been  called  in  the  argu- 
ment here,  are  said  to  be  apparent  upon  the  award  itself,  con- 
sidered in  connection  with  the  manner  and  terms  of  the  re- 
ference. It  is  contended,  for  the  <defendants,  that  the  refer- 
ence, having  been  made  of  a  cause  pending  m  Court,  and  by 
aci'ule-of  that  Court,  the  award  does  not  dispose  of  all  the 
matters  which  were  thus  referred,  and  that  it  is  not  responsive 
to  all  the  issues  made  by  ti>e  .pleadings.  The  argument  tails, 
as  we  think,  upon  both  the  jfjoints  to  which  the  ex-ception  re- 
lates. 

Theoounse'I  insists  that  .as  the  reference  embraced  "all 
matters  in  controversy"  in  this  and  two  other  suits,  in  which 
the  present  plaintiff  was  defendant,  and  the  present  defen- 
dants were  plaintiffs,  the  arbitrators  were  bound  to  determine 
by  their  award,  the  boundaries  of  the  lands  of  the  parties, 
and  to  fix  the  di-viding  line  between  them.  Tlie  action  in  the 
■case,  befoi-e  us,  is  the  only  one  necessary  for  us  to  consider,  as 
the  otlier  two  have  been  disposed  of  in  the  Court  below.  It 
Avas  an  action  of  trespass,  quare'clausum  fregit,  to  which  the 
defendants 'pleaded  the  general  issue  of  not  guilty,  license,  ac- 
cord and  satisfaction,  and  the  statute  of  limitations.  The 
submission  to  arbitration  being  by  a  rule  of  Court,  "embrae- 
>ed  the  matter,  and  that  onl^^  which  the  pleadings  of  the  par- 
!ties  brought  into  contestation  before  the  CoHrt,"  as  w\as  ex- 
t.pressly  said  in  Ilardhi  v.  Beatij^  -i  Dev.  and  Bat.  Rep.  381. 
The  laud,  upon  wiiicli  the  ti-espass  was  alleged  to  have  been 
committed,  was  noc<?Sf;arily  described  \\\  tiie  plaintift^'s  dcola- 
ra,tion,  and  as  the  verdict  of  a  jury  in  favor  of  the  plaintiff, 
need  not  have  set  out  the  boundaries  of  the  land,  nor  hav-e 
fixed  the  dividing  line  between  the  parties,  neither  was  it  ne- 
«cessary  for  the  award  of  tlie  arbitrators  to  have  done  so. 
JEIei*3,  howevei",  the  arbitrators  seem  to  have  gone  further  than 


DECEMBER  TERM,  1860.  157 


Ballard  v.   Mitche?!. 


was  necessaiy,  and  to  have  done  Qv&ry  thing  for  which    the 
defendants  have  contended. 

The  other  ground  of  exception  that  the  arl)itrators  have  not 
disposed  of  all  the  issues  raised  by  the  pleadings  is  equally 
untenable.  The  award,  after  finding  that  tiie  title  of  the  land, 
which  was  a  matter  of  dispute  in  all  the  three  cases,  was  in 
the  plaintiff  in  tiie  present  suit,  proceeds  to  assess  the  amount 
of  damages  to  which  he  is  entitled,  and  directs  the  defendant 
to  pay  them,  together  with  all  the  costs.  This  is,  in  legal  ef- 
fect, the  same  as  the  verdict  of  a  jury,  finding  all  the  issues 
in  favor  of  the  plaintiff,  and,  thereupon,  assessing  the  amount 
of  his  damages.  In  the  case  of  Carter  v.  Sams^  4  Dev.  and 
Bat.  Rep.,  182,  it  was  said  tliat  the  Court  will  always  intend  ev- 
ery thing  in  favor  of  an  award,  and  will  give  such  a  construction 
to  it,  that  it  may  be  supported  if  possible.  Tliere,  the  action 
was  trespass  on  the  case  for  a  malicious  prosecution,  to  which 
the  defendant  pleaded,  "not  guilty."  It  was  referred  by  a 
rule  of  Court  to  arbitration,  and  the  referees  returned  an 
award,  stating  that,  "we  agree  that  the  defendant  pay  all  costs 
and  assess  the  plaintift^'s  damage  to  one  hundred  dollars." 
The  Court  held  the  award  to  be  sufficient,  and  that  it  meant 
that  the  defendant  was  awarded  to  pay  to  the  plaintiff  one 
hundred  dollars,  and  also  his  costs  expended  in  the  cause  re- 
ferred. In  that  case,  there  was  no  direct  finding  on  the  issue 
"not  guilty,"  but  it  was  taken  to  be  included  in  the  award 
which  assessed  damages  for  the  plaintiff.  Upon  the  same 
principle,  the  award  of  damages  and  costs  to  the  plaintiff",  in 
the  present  case,  must  be  held  to  include  a  finding  of  all  the 
issues  in  his  favor,  and  of  course,  against  the  defendant. 

Pek  Curiam,  Judgment  affirmed. 


158  m  THE  SUPKEME  COUET. 


McDonald  v.   McCaskill. 


Doe  on  dem.  of  MARTIN  McDONALD  v.  ALLEN  McCASKILL. 

Where  a  witness  testified  that  a  certain  unmarked  pine  had  been  pointed  out 
to  him  as  the  corner  of  a  grant  by  an  old  man,  at  the  time  of  the  trial  de- 
ceased, and  there  were  five  particulars,  in  which  the  description,  in  the 
grant,  were  supported  by  the  facts  proved,  it  was  Held  erroneous  to  charge 
the  jury,  that  there  was  no  evidence  of  the  location  of  the  grant. 

Action  of  ejf.ctment,  tried  before  French,  J.,  at  the  last 
Fall  Term  of  Richmond  Superior  Court. 

The  plaintiff  read  in  evidence  a  grant  from  the  State  to 
himself,  dated  1st  January,  1858,  conveying  the  land  in  con- 
trovers3^ 

The  defendant  offered,  in  evidence,  a  grant  from  the  State 
to  one  David  Allison,  dated  in  1795,  which  is  as  follows : 
"  State  of  North  Carolina.  No.  815." 

"Know  ye,  that  we  have  granted  unto  David  Allison,  six 
hundred  and  fort^'-  acres  of  land  in  Richmond  county,  begin- 
ning at  a  pine,  between  Hitchcock  creek  and  Mountain  creek, 
and  on  the  east  side  of  George  Collins,  and  on  the  north  side 
of  the  Grassy  Island  road,  and  runs  east  320  poles  to  a  pine 
below  McCall's  mill;  thence  north  320  poles  to  a  pine  above 
said  mill,  then  west  320  poles  to  a  corner,  then  south  320 
poles  to  the  beginning.     Dated  23rd  April,  1T95." 

It  was  in  evidence,  that  Hitchcock  creek  and  Mountain 
creek  were  each  15  or  20  miles  long  and  8  or  10  miles  apart, 
and  between  these  two  streams  was,  generally,  a  pine  coun- 
try. It  was  further  in  evidence,  that  the  Grassy  Island  road 
was  8  or  10  miles  long. 

One  Gillis  testified,  that  about  20  years  ago,  one  McCas- 
kill, now  deceased,  pointed  out  to  him  a  pine,  then  green,  and 
forked  about  three  or  four  feet  from  the  ground,  as  the  corner 
of  the  Robinson  and  Harrington  land,  and  represented  on  the 
annexed  diagram  as  letter  A.  The  witness  heard  nothing 
said  about  the  beginning  corner.  The  pine  is  between  the 
streams  above  named,  on  the  edge  of  the  Grassy  Island  road 
and  about  a  half  a  mile  south-east  of  George  Collins.     Mc- 


DECEMBER  TERM,  1860. 


159 


McDonald  v.    McCaskill. 


Caskill,  spoken  of  above,  was  a  native  of  Scotland,  and  came 
to  the  United  in  1802,  and  to  the  neighborhood  of  the  land  in 
controversy,  in  1820. 


Grant   Xo    815 


ae 


Gillis  stated  that  the  pine  pointed  out  to  him  by  McCaskill 
had  no  marks  of  any  kind  on  it. 

Assuming  the  pine,  above  mentioned,  (A)  as  the  beo-inninc- 
of  the  Allison  grant,  and  running  course  and  distance,  the  first 
line  would  end  about  100  poles  below  McCall's  mill,  and  the 
second  line  about  160  ])oles  above  it,  and  pursuing  the  calls 
of  course  and  distance,  the  locus  in  (juo  would  be  within  the 
Allison  grant. 

The  defendant  further  offered  a  deed  from  sheriff  Cole  to 
Toddy  Robinson  and  Henry  Harrington,  dated  in  1796,  con- 
taining several  tracts,  each  containing  640  acres,  and  among 
them  was  tract  "No.  815,  granted  to  David  Allison  on  23rd 
April,  1795." 

The  Court  charged  the  jury,  that  there  was  no  evidence  to 


160  IN  THE  SUPREME  COURT. 


McDoBiald  V.  McCaskill. 


be  submitted  to  them  of  the  locatiow-  of  the  x\lIison  gran-t. 
Defendant's  counsel  excep-ted. 

Verdict  and  judgment  for  phiintitf.     Appeal  by  defendan-t. 

Cameron  and  Strange^  for  the  plaintiff. 
AshCy  for  the  defendant. 

Pearson,  C.  J.  The  sheriff's  deed  to  Robinsoia  and  Har- 
rington, dated  in  1796,  for  a  tract  of  640  acres  of  land,  grant- 
ed to  David  Allison,  "  by  grant,  ISTo.  815,  dated  23rd  of  April, 
1795,"  we  think  makes  a  link  sufficiently  sti'ong  in  the  chain 
of  title  to  connect  the  land,  covered  by  this  grant,  with  the 
title  of  "  Robinson  and  Harrington,"  so  as  to  establisli  that 
it  was  the  Robinson  and  Harrington  land  referred  to  in  the 
hearsay  evidence  of  Alexander  McCaskill,  derived  through 
the  testimony  of  the  witness,  Gillis.  That  evidence  was  com- 
petent on  a  question  of  boundary,  and,  indeed,  was  not  ob- 
jected to  on  the  trial  ;  con-sequently,  there  was  some  evidence 
to  be  submitted  to  the  jury,  of  the  location  of  tlie  Allison 
grant ;  for  the  fact,  that  by  beginning  at  the  pine  pointed  out 
by  McCaskill  as  "  the  corner"  of  the  Robinson  and  Harring- 
ton land,  and  running  thence  according  to  the  calls  of  the  grant, 
live  general  descriptions  tit  in,  and  concur  to  prove  the  accuracy 
of  the  witness,  and  make  out  a  remarkable  coincidence,  which 
was  well  calculated  to  satisfy  the  jury  that  it  was  the  true 
location  of  the  grant.  At  all  events,  in  the  opinion  of  this 
Court,  the  jury  ought  to  have  been  allowed  to  take  these  sev- 
eral matters  into  considei'ation.  In  aid  of  the  hearsay  evi- 
dence, we  have  the  facts,  that  it  fits  the  grant  in  this  :  1st.  It 
is  a  pine  between  Hitchcock  creek  and  Mountain  creek. 
2nd.  It  is  east  of  George  Collins.  3rd.  It  is  on  the  edge  of 
the  Grassy  Island  road.  4th.  Running  course  and  distance, 
the  first  line  crosses  the  creek  below  McCalls'  mill.  5th.  The 
second  line  terminates  aboi:re  McCaWa  Mill.  It  is  true,  these 
descriptions  are  very  general,  and  neither  taken  by  itself,  would 
amount  to  much,  but  taken  together.,  like  many  small  circum- 
stances, all  pointing  the  same  way,  they  were  fit  to  be  sub- 


DECEMBER  TEKM,  I860..  161 

SoafF  u.  Bufkin. 

mitted  to  the  jury,  and  might  have  enabled  them  to  arrive  at 
a  satisfactory  conclusion. 

There  is  error.      Venire  d&  novoi. 

Fek  Curiam,.  Judgment  reversed,, 


PALIN  SGAFF  v.  M.  W.  BUFKIN,  Adm'r.. 

€onrls  of  Pleas  and  Quarter  Sessions  have  power  to  set  aside  a  verdict  and 
judgment,  and  to  order  a  new  trial  during  the  term. 

The  power  of  the  Courts  of  Pleas  and  Quarter  Sessions,  to  set  aside  a.verdict 
aud  order  a  new  trial,  is  entirely  discrctionar}',  and  the  propriety  of  its  ex- 
ercise cannot  be  enquired  into  upon  appeal. 

This  was  an    appeal   from    an    interlocutory    order   of  the 
Count}'  Court  of  Pasquotank,  and  was  heard  before  Howard,, 
J.,  at  Full  Term,  1S60,  of  the  Superior  Court  of  said  County,, 
upon  the  following  case  agreed  : 

At  June  Terra,  1800,  of  the  Court  of  Pleas  and  Quarter 
Sessions  of  Pasquotank  county,  the  plaintiff  issued  his  writ 
against  the  defendant,  as  administrator  of  one  Susan  Jennings, 
and  service  of  the  same- was  accepted  by  the  defendant;  at  the 
same  term  the  pleas  of  the  defendant  were  entered,  and  by 
consent  the  cause  was  tried.  A  jury  was  empannelled,  wit- 
nesses examined  by  plaintiff,  and  the  cause  submitted  to  the 
jury,  who  returned  a  verdict  in  favor  of  plaintiff,  for  $228,00, 
and  finding  that  there  were  debts  of  higher  dignity.  Upon 
which  verdict,  a  judgment  ''''  quando'''  was  rendered  by  the 
Court.  Some  days  after  this  verdict  and  judgment,  but  du- 
ring the  term  of  the  Court,  James  Jones  and  Amanda  his 
wife,  parties  not  of  record  came  into  court  by  their  attorney, 
and  asked  the  Court  to  set  aside  the  verdict  and  judgment,  and 
direct  a  new  trial,  this  application  was  resisted  b}'^  tiie  plain- 
tiff, but  the  Court  ordered  the  verdict  and  judgment  to  beset 

11 


162  m  THE  SUPREME  COURT. 

Scaff  V.  Buf  kin. 

aside,  and  a  new  trial  to  be  had,  from  which  order  the  plain- 
tiff appealed. 

Two  questions  were  submitted  to  his  Honor : 

1st.  Had  the  County  Court  the  power  to  set  aside  tlie  ver- 
dict and  judgment,  and  grant  a  new  trial. 

2ndly.  Had  the  County  Court  the  power  upon  the  appli- 
cation of  parties  not  of  record  to  set  aside  the  verdict  and 
judgment,  and  direct  a  new  trial. 

His  Honor  being  of  opinion  against  the  plaintiff,  upon  both 
of  the  questions,  ordered  the  appeal  to  be  dismissed,  and  the 
plaintiff  appealed. 

Johnsoti,  for  plaintiff. 
IJinton,  for  defendant. 

Pearson,  C.  J.  This  Court  concurs  with  his  Honor,  on  both 
of  the  questions  presented  by  the  case.  The  power  of  grant- 
ing "  new  trials,"  has  been  exercised  by  the  courts  of  Pleas 
and  Quarter  Sessions,  in  this  State,  as  far  back  as  the  recol- 
lection of  either  member  of  this  Court  reaches.  We  have 
never  heard  of  its  being  drawn  in  question  before.  This  long 
user,  without  objection  on  the  part  of  the  profession,  and 
without  interference  on  the  part  of  the  Legislature,  creates  so 
strong  a  presumption  in  favor  of  the  existence  of  the  power, 
that  we  should  not  feel  at  liberty  to  deny  it,  except  on  the 
most  convincing  proof.  The  suggestion,  that  the  power  is  lia- 
ble to  abuse,  because  the  members,  of  which  the  court  is 
composed,  may  be  continually  shifting,  addresses  itself  to  the 
legislative  department,  and  would,  we  have  no  doubt,  have 
been  attended  to  had  any  serious  practical  evil  resulted 
from   it. 

Indei)endcntly  of  the  argument  di-awn  from  long  user,  we 
are  of  opinion  that  the  county  court  has  the  power.  It  is 
true,  an  inferior  court  has  not  the  power  to  grant  a  new  trial, 
and  as  soon  as  it  acts,  \iQ>Q,ovci^%  functus  officio  in  respect  to  the 
case  decided.  For  instance,  a  single  justice  of  the  peace 
cannot  grant  a  new  trial,  except  under    the    circumstances 


DECEMBER  TEEM,  1860.  163 

Billups   V.   Riddick. 

where  the  power  is  specially  conferred  by  statute.  But  the 
county  court  is  not  an  inferior  court,  within  the  meaning  of 
this  rule.  It  is  a  court  of  record,  and  has  general  original 
jurisdiction  "to  hear,  try  and  determine  all  causes  of  a  civil 
nature  at  the  common  law  within  their  respective  counties, 
where  the  original  jurisdiction  is  not,  by  statute,  confined  to 
one  or  more  magistrates  out  of  court,  or  to  the  Supreme  or 
superior  courts ;"  Rev.  Code,  ch.  31,  sec.  5. 

As  the  Court  has  the  power,  it  follows  that  its  discretion,  in 
the  exercise  of  it,  cannot  be  reviewed.  Whether  the  discre- 
tion be  exercised  ex  mero  viotu^  or,  at  the  instance  of  a  stran- 
ger to  the  proceedings,  is  a  matter  which  does  not  at  all  affect 
the  validity  of  its  action,  and  cannot  be  enquired  into.  In 
this  particular  instance,  however,  we  will  say,  from  what  ap- 
pears on  the  record,  the  discretion  was  very  properly  exer- 
cised in  setting  aside  a  judgment,  which  had  been  confessed 
(for  it  amounted  to  that  in  fact)  at  the  first  term,  by  one  who 
had  no  personal  interest  to  contest  the  claim,  as  a  want  of  as- 
sets was  admitted.     There  is  no  error. 

Per  Curiam,  Judgment  affirmed^ 


d 


JOSEPH  R.  BILLUPS  and  loife  v.  WILLIS  D.  RIDDICK  and  wife. 

Where  a  petition  was  filed  for  partition  of  slaves  and  money,  and  there  was 
no  answer,  no  judgment  pro  confesso,  no  issue  made  up,  and  no  order  made 
for  setting  the  case  for  hearing,  it  was  held  erroneous  for  the  Court  to  pass 
a  decree. 

The  jurisdiction  of  the  county  court  to  order  a  partition  among  tenants  in 
common,  does  not  extend  to  money. 

A  petilion  against  an  executor  for  a  filial  portion,  &c.,  will  not  lie  for  money 
or  other  property  delivered  by  him  to  a  legatee  for  life. 

This  was  a  petition  for  the  partition  of  slaves,  and  for  an 
account  of  money,  &c.,  tried  before  Howard,  J.,  at  Fall  Term, 
1860,  uf  Perquimons  Superior  Court. 


164  IN  THE  SUPKEME  COUET. 

Billups  V.  Riddick. 

The  petition  was  filed  in  the  County  Court  of  Perquimons 
against  Willis  D.  Riddick  and  wife,  and  sets  forth,  "That one 
Jesse  Stallings,  the  father  of  your  petitioner,  Sophia,  died  in  the 
county  of  Perquimons,  having  made  a  last  will  and  testament, 
by  the  provisions  of  which,  a  large  amount  of  property,  consist- 
ing of  negroes  and  money,  was  left  to  Priscilla  Stallings  du- 
ring her  life,  and  after  her  death,  the  same  to  be  equally  di- 
vided between  your  petitioner,  Sophia,  and  her  sister,  Mary 
Riddick,  wife  of  Willis  D.  Pviddick."     *     *    *     "That  Wil- 
lis D.  Riddick,  one  of  the  executors,  named  in  the  said  wil), 
took  upon  himself  the  duties  of  his  office,  and  that  he  assent- 
ed to  the  legacies  of  the  said  will,  and  placed  the  property, 
given  to  the  said  Priscilla  during  her  life,  in  her  possession." 
*     *     *     a  'pjjj^i-  Pi-iscilla  Stallings  has  lately  died  in  the  said 
county,  leaving  a  large  estate,  the  gift  to  her  for  life,  consist- 
ing of  a  large  number  of  slaves,  (naming  them)  and  also  a 
large   amount   of  money  (about  four  thousand    dollars)  and 
other  property,  which,  by  the  terms  of  the  said  will,  now  be- 
longs equally  to  .your  petitioners,  and  to  the  said  Willis  D. 
Riddick  and  wife,  Mary."   The  prayer  is  for  the  appointment  of 
commissioners  to  divide  the  slaves,  and  for  an  account  of  the 
money.     The  petition  was  served  upon  Riddick,  and  at  August 
Term,  1860,  of  the  said   County  Court,  is  this  record  :  "  De- 
cree of  the  Court  in  favor  of  the  plain tiifs  for  partition  and 
an  account."     From  which  the  defendant,  Riddick,  appealed 
to  the  Superior  Court.     In  the  Superior  Court,  is  this  record : 
"  It  is  ordered  and  decreed  by  the  Court,  that  the  plaintiffs 
are  entitled  to  a  division  and  partition  of  the  negroes  in  con- 
troversy, and  that  five  commissioners  be  appointed  according 
to  law,  to  divide  the  slaves.     It  is  also  ordered  and  decreed, 
that  the  plaintiffs  are  entitled  to  an  account  of  the  remaining 
personal  property  of  Jesse  Stallings,  on  hand  at  the  death  of  ^ 
his  widow,  comprising  the  capital  of  the  said  fund  and  not 
the  interest  accrued  on  the  same,  during  the  life  of  his  widow." 
There  is  no  other  record  in  either  Court.     The  will  of  Jesse 
Stallings  is  filed,  and  it  is  deemed  that  the  provisions  of  that 


DECEMBER  TERM,  1860.  165 

Billups  V.  Riddick. 

paper  are  sufficiently  set  out,  in  the  opinion  of  the  Court,  for 
all  the  purposes  of  this  case. 

Tlie  defendants  appealed  from  the  deci-ee  i-n  the  Snpemr 
Oourt. 

Alhritton  and  Jordan^  for  the  plaintiffs. 
Hines,  for  the  defendants. 

Pearson.,  C-  J-  The  decree  in  the  Court  beiosv,  is  -errone- 
ous, and  must  be  reversed,  and  the  petition  dismissed. 

There  are  so  many  fatal  objections,  that  we  are  at  a  loss  on 
which  to  put  our  decision. 

1,  It  does  not  appear  by  the  transcript  that  an  answer  was 
liled  ;  there  is  no  judgment  2^f'0  eonfc^fio  /  no  issue  is  made, 
•either  of  law -or  fact,  and  there  is  n©  order  setting  the  case  for 
hearing. 

2.  There  is  no  allegation  that  the  slaves,  which  are  to  be 
divided,  or  the  money,  of  wliick  an  account  is  prayed,  are  in 
the  possession  of  either  the  plaintiffs  or  the  defendants. 

"3.  The  juTisdiction  of  the  county  court  to  order  partition 
among  tenants  in  common,  on  petition,  is  confined  to  a  divi- 
sion of  slaves  or  other  ehattel  property.  This  does  not  em- 
brace monej'',  and  the  Court  had  no  jurisdiction  to  order  an 
account  to  be  taken.  That  branch  of  equity  jurisdiction  is 
not  conferred  ou  the  county  courts,  and  has  ivever  been  as- 
sumed before  this  case,  except  ok  petitions  for  legacies,  filial 
portions  and  distributive  shares.  15ut  our  case  does  not  fall 
wnder  either  of  these  beads,  the  •executor  having  long  since 
assented,  and  passed  the  property,  money,  tt'c,  to  thelegateee. 

4.  The  petitivTin  alleges  tliat  Friscilla  Stallings  was,  by  the 
will  of  Jesse  Stallings,  entitled  to  att  estate  for  l^fe,  in  the 
■slaves  and  other  property  and  effects,  and  after  her  death,  the 
«ame  was  to  be  equall}''  divided  lietween  the  petitioner,  So- 
phia, and  the  defendant,  her  sister,  Mary,  Whether  this  be 
the  legal  effect  of  the  will,  is  a  question  which  cannot  now  be 
decided.  The  slaves,  property,  money,  &e.,  are  given  to 
Frificiila  Stailioags,  Sophia  Wliite  and  Mary  Riddick,  to  be 


166  m  THE  SUPKEME  COUKT. 

Madden  v.  Porterfield. 

equally  divided  between  the  three.  This  vesta  in  Mrs.  Stall- 
ings  an  absolute  estate,  just  as  it  does  in  Mrs.  White  and  Mrs. 
Riddick,  and  we  suppose,  from  the  argument  before  us,  that 
the  purpose  of  the  petition  was  to  have  a  cmistruction  of  the 
will,  as  to  whether  the  subsequent  clause^  in  which  the 
testator  desires  all  that  part  of  the  property,  given  to  his 
wife,  "  that  shall  he  reraaininfj  at  her  death^''  to  be  equally 
divided  between  his  two  daughters,  has  the  effect  of  cutting 
down  the  estate,  given  to  the  wife,  so  as  to  make  room  for  the 
limitation  over  ;  o.r  is  inoperative,  because  inee»sistent  with 
the  estate  before  given  to  her.  Thi's  depends  upon  the  appli- 
cation of  tlie  doctrine  discussed  in  McDxm.iel  v.  McDaniely 
5  Jones'  Eq.  352  ;  Hall  v.  RoUnson,  3  Jones'  Eq.  349  ;  New- 
land  V.  Ne'iola7id^  1  Jones,  403,  and  other  cases. 

As  a  matter  of  course,  tliis  question  cannot  be  decided  ex- 
cept in  some  proceeding,  to  which  the  personal  representa- 
tive of  Mrs.  Stallings  is  a  party,  and  as  the  decree,  in  this- 
case,  is  based  upon  a  decision  of  that  Cjuestion,  it  is  erroneous. 

Pek  Curiam,     Judgment  reversed,,  and  petitioB  dismissed. 


QUINCY  MADDEN  v.  JAMES  PORTERFIELR 

Where  plaintiff  bad  contpaeted  to  serve  defendant  for  ten  months,  for  a  cer- 
tain sum,  and,  before  the  expiration  of  that  time,.defendant  wrongfully  dis- 
missed him,  and  plaintiff  sue<l  upon  the  common  count  in  assumpsit,  itwas-- 
Md  that  he  could  recover,  upon  this  count,  for  the  tia:ie  lie  had  actually 
worked. 

And  it  was  further  held,  that,  had  the  plaintiff  inserted  a  count  upon  the  spe- 
cial contract,  he  might  hare  recovered  for  the  whole  time. 

It  is  the  province  of  a  jury,  to  affix  a  value  to  services,  according  to  their  na- 
ture and  extent,  as  proved;  and  it  is  not  necessary  for  witnesses  to  esti- 
mate their  value  in  money. 

Where  it  was  sought  to  prove  the  value  of  plaintiff's  services,  during  a  terna. 


DECEMBER  TERM,  1860.  167 

Madden  v.  Porterfield. 

of  seven  months,  it  was  held  an  immaterial  question  for  the  defendant's 
counsel  to  ask  witness  the  value  of  such  services  for  half  an  hour,  during 
which  witness  saw  plaintiff  at  work. 

Tins  was  an  action  of  AssuMrsix,  tried  before  Dick,  J.,  at 
June  Term,  ISHO,  of  Orange  Superior  Court. 

Tlie  action  was  brought  upon  an  open  account,  for  %vork 
and  labor  done  by  the  phiintift"  for  the  defendant,  and  was 
commenced  before  a  single  magistrate.  Plaintiff  alleged  that 
he  had  woiked  seven  or  eight  months  for  the  defendant  on 
his  farm,  and  that  iiis  services  were  worth  eight  or  nine  dol- 
lars per  month.  He  first  examined  Woods  McDade,  who  sta- 
ted that  plaintiff  worked  seven  or  eight  months  on  defendant's 
plantation.  Plantiff's  counsel  asked  witness  if  plaintiff  was  a 
good  hand  on  a  plantation.  This  question  was  objected  to  by 
defendant's  counsel,  bat  was  admitted  by  the  Court.  Witness, 
then  answered,  that  plaintiff  was  a  very  good  hand  to  work 
on  a  plantation.  Defendant's  counsel  then  asked  plaintiff  what 
work  he  knew  of  plaintiff's  doing  for  defendant.  AVitness 
replied,  that  he  was  present  on  the  farm  of  defendant,  two 
days  witli  plaintiff,  engaged  with  him  in  rolling  logs,  splitting 
rails,  etc.,  on  a  new-ground,  and  that  the  labor  of  plaintiff,  for 
those  two  days  was  worth  two  dollars.  Defendant's  counsel 
then  asked  witness  what  other  work  he  knew  of  plaintiff's 
doing  for  defendant.  Witness  replied  that  he  lived  a  neigh- 
bor to  defendant ;  that  he  frequently  passed  his  plantation, 
perhaps  as  often  as  twenty  times  during  the  time  the  plaintiff" 
■\vas  at  work  for  him,  and  each  time  he  passed,  he  saw  the 
plaintiff'  at  work  on  the  farm.  Defendant's  counsel  then  asked 
witness  how  long  he  saw  him  at  work,  each  time  he  passed  ; 
witness  said  he  could  not  say  with  certainty,  but  he  probably 
saw  him  at  work  as  much  as  half  an  hour  sometimes  when  he 
passed.  Defendant's  counsel  further  asked  him,  M'hat  his  work, 
for  the  half  hour  he  saw  him  at  work,  was  worth.  Plantift''s 
counsel  objected  to  the  last  question,  and  the  objection  was 
sustained  by  the  Court. 

J.  McDade  was  then   examined,     lie  stated,  that  he  fre- 
quently saw  plaintiff"  working  on  the  farm  of  defendant,  for 


168  m  THE  SUPREME  COURT. 

Madden  v.  Porterfield. 

for  the  space  of  six  or  eight  months  ;  and  that  plaintiff  was  en- 
gaged in  gTubing,  farming,  &c. 

John  Smith  was  next  examined  for  plaintiff.  He  stated 
that  he  lived' on  an  adjoining  farm  to  defendant;  that  plain- 
tiff began  to  work  for  defendant  in  the  month  of  November, 
and  continued  to  work  until  harvest  following;  that  for  two 
months  of  the  time,  he  saw  plaintiff"  at  %vork  on  the  farm  ©f 
•defendant,  every  work  day;  and  that  he  was  a  good  hand,  and 
worth  at  least  eight  dollars  per  month. 

Defendant's  counsel  contended,  that  plaintiff  was  not  en- 
titled to  recover,  because  he  had  made  a  special  contract  with 
defendant,  to  work  for  iiim  on  his  farm,  for  the  term  of  ten 
months,  for  the  sum  of  seventy  ffve  dollars,  and  had  not  per- 
formed his  contract.  Defendant's  counsel  then  introduced  a 
witness  by  the  name  of  James  Porterfield,  who  stated  that  he 
heard  the  plaintiff  say,  he  was  to  work  for  the  defendant  ten 
months  for  seventy  five  dollars.  One  Birch  was  also  exam- 
ined, who  stated  that  he  heard  the  plaintiff  say,  he  was  to  work 
for  the  defendant  ten  months  for  seventy  five  dollars. 

The  plaintiff'  then  examined  one  G.  Allison.  She  said,  that 
after  plaintiff  had  left  defendant's  house,  she  was  working  for 
defendant,  and  heard  him  say  that  it  was  well  for  Quincy 
that  he  left,  or  it  might  have  been  bad  tin:ies  for  him,  but  said 
he  was  soi-ry  now,  that  he  made  an  interruption  with  Quincy 
and  drove  him  oft'. 

The  Court  charged  the  jury,  that  if  the  evidence  satisfied 
tliem  that  the  plaintifi"  had  contracted  to  work  for  the  defen- 
dant for  ten  months  for  seventy  five  dollars,  he  was  not  enti- 
tled to  recover,  unless  the  defendant  had  put  it  out  of  the 
'power  of  the  plaintiff  to  perform  his  contract  by  discharging 
him  from  his  employment. 

If  they  believed  no  special  contract  was  made,  and  they 
further  believed  plaintiff  had  worked  for  the  defendant,  at  his 
instance  and  request,  it  was  for  them  to  say  how  much  work 
he  had  done,  and  what  was  the  value  of  that  work,  or  if  they 
believed  a  special  contract  had  been  made,  as  alleged  by  de- 
fendant, and  that  plaintiff  had  been  prevented  by  defendant, 


DECEMBER  TERM,  1860.  169 

Madden  v.  Porterfield. 

from  performing  his  contract,  the  plaintiff  was  entitled  to  re- 
'Cover  for  such  work  as  he  had  done  for  the  defendant. 

The  defendant's  counsel  asked  the  Court,  to  charge  the  jury, 
that  if  the  plaintiff  was  entitled  to  recover  at  all,  he  could 
only  recover  for  the  amount  specially  proved  by  his  witness, 
■and  that  was  the  sum  of  two  dollars.  The  Court  refused  so 
4o  charge. 

Verdict  and  judgment  for  the  plaintiff.  Appeal  by  defen- 
'dant. 

Norwood^  for  the  plaintiff. 
Miller^  for  the  defendant. 

Manly,  J.  This  is  an  action  of  indebitatus  assumpsit, 
^brought  by  a  hired  servant,  to  i-ecover  compensation  for  work 
and  labor. 

Three  questions  are  presented  upon  the  record.  The  prin- 
cipal one  is,  whether,  in  case  of  a  special  conti-act  to  labor  for 
ten  months  and  a  lormujful  dismissal,  plaintiff  can  recover 
upon  an  indebitatus  count,  for  work  and  labor. 

The  action  seems  not  to  have  been  framed  with  a  count  on 
the  special  contract,  in  which  case,  by  force  of  the  discharge 
without  cause,  plaintiff"  might  have  recovered  the  stipulated 
sum  for  the  whole  time,  but  the  plaintiff'  has  relied  upon  a 
single  count,  as  above  stated,  and  although,  in  such  action 
he  cannot  recover  his  whole  wages  for  the  entire  term  of  hir- 
ing, as  for  a  constructive  service,  yet,  we  are  of  opinion  he 
may  recover,  regarding  it  as  a  rescinded  contract,  for  his  ser- 
vice up  to  the  time  of  his  dismissal;  see  1  Parsoi>s  on  Con- 
tracts 520,  note  j,  and  the  cases  there  cited. 

The  second  point,  viz :  that  upon  the  admissibility  of  evi- 
dence, was  also  ruled  correctly  by  his  Honor  below. 

It  did  not  tend  at  all  to  aid  the  jury,  in  their  enquiry,  as  to 
the  value  of  a  man's  labor  for  seven  months,  to  know  what 
the  half  hour  of  his  time,  when  witness  was  with  him  on  a 
certain  occasion,  was  worth.     The  question  was  immaterial. 

The  instruction  asked  for  and  refused,  which  constitutes  the 


170  m  THE  SUPREME  COURT. 

State   V.  Gray. 

third  point  of  exception  to  the  trial,  is  based  npon  the  idea 
that  all  evidence,  as  to  the  nature  and  extent  of  the  services 
of  plaintiff,  was  to  be  excluded  from  the  view  of  the  jury, 
unless  the  witnesses  themselves  made  estimates  of  their  value 
in  money.  This  is  not  correct.  It  is  the  appropriate  pro- 
vince of  the  jury  to  affix  a  value  to  services,  according  to 
their  nature  and  extent  as  proved;  and  with  the  data  afforded 
by  the  proofs  in  this  case,  we  see  no  difficulty  in  the  perform- 
ance of  that  duty. 

Pee  Cukiam,  Judgment  affirmed. 


STATE  V.  WESLEY  GRAY. 


In  an  indictment  under  our  statute,  Rev.  Code,  chap.  34,  sec.  5,  for  carnally 
knowing  and  abusing  an  infant  female  under  the  age  of  ten  years,  it  was 
held  error  in  the  Judge  to  charge  the  jury,  that  proof  of  emission  of  seed 
was  not  necessary  in  order  to  convict  the  prisoner. 

This  was  an  indictment,  under  the  statute,  against  the  de- 
fendant, for  carnally  knowing  and  abusing  a  female  infant 
under  the  age  of  ten  years,  tried  before  Saunders,  J.,  at  the 
last  Fall  Term  of  Guilford  Superior  Court. 

The  indictment  charged,  that  the  defendant  did  carnally 
know  and  abuse  one  Louisa  E.  Wheeler,  alias  Louisa  E.  Stack, 
a  female  under  the  age  of  ten  years.  It  appeared,  in  evi- 
dence, that  she  was  between  the  ages  of  eight  and  nine  years, 
at  the  time  of  the  commission  of  the  offense;  that  she  was  of 
ordinary  size,  and  of  more  than  ordinary  intelligence.  She 
testified  that  she  was  sent  to  Jamestown  to  carry  dinner  to 
her  father,  who  was  at  work  there,  it  being  about  a  mile  from 
where  she  lived,  and  that  she  walked  on  the  track  of  the  rail- 
road ;  that  her  father  was  engaged  in  digging  a  well  there ; 
she  saw  the  prisoner  at  the  well ;  that  he  was  not  at  work ; 


/ 


DECEMBER  TERM,  I860-.  171 


State  V.   Gray. 


that  after  Iier  father  finished  his  dinner,  he  ordered  her  home  ; 
that  when  she  started,  the  prisoner  followed  her  and  over- 
took her  in  less  than  a  quarter  of  a  mile ;  that  he  was  fif- 
teen years  old,  and  as  she  did  not  like  to  travel  with  him, 
she  stopped  at  one  Jackson's,  who  lived  near  the  road,  to  get 
some  water  ;  that  prisoner  proposed  to  wait  for  her,  and  call- 
ed her  two  or  three  times  ;  that  she  supposed  he  was  gone,  but 
on  getting  into  the  road,  he  again  joined  her:  that  going  a 
short  distance  they  met  his  sister  and  her  husband,  who  pro- 
posed that  he  should  go  back  with  them,  which  he  declined  ; 
she  went  on  and  he  soon  overtook  her  again,  and  began  to- 
talk  "  nasty  words  ;"'  that  she  picked  up  a  roek  or  stone  and 
told  him,  if  he  touched  her,  she  would  throw  it  at  him  ;  tliat 
he  thereupon  seized  her  by  her  shoulders,  pushed  her  a  few 
steps  out  of  the  road,  pulled  up  her  clothes,  threw  her  down 
and  got  on  her,  and  tried  to  stop  her  mouth  ;  that  she  hollow- 
ed as  loud  as  she  could  ;  that  he  remained  on  her  some  five 
minutes  ;  that  he  hurt  her  very  much  when  he  entered  her 
person,  and  made  her  private  parts  bleed;  that  he  then  got 
oflf  of  her,  got  some  switches  and  threatened  to  whip  her  if 
she  did  not  promise  not  to  tell  her  mother;  that  lie  whipped 
her  until  she  promised,  and  then  left  her;  that  she  went  on 
home,  and  on  going  into  the  house,  told  her  mother  that  pri- 
soner had  nearly  killed  her.  Hev  mother  was  then  examined, 
and  testified  to  what  the  child  had  stated. 

Doctor  Pugh  testified,  that  he  was  called  the  next  day,  ex- 
amined the  child,  and  found  her  private  parts  very  much  swool- 
en,  torn  and  lacerated  ;  tha,t  there  had  been  a  penetration, 
certainly,  as  much  as  three-fourths  of  an  inch,  or  perhaps  an 
inch  and  a  half ;  that  he  was  decidedly  of  opinion  that  the 
entry  had  been  as  far  as  it  was  possible  in  a  child  of  her  age. 
The  father  also  testified  to  having  seen  the  prisoner  at  the 
well  when  the  gii'l  left,  but  did  not  see  him  afterwards. 

The  Court  charged  the  jury,  that  if  the  testimony  of  the 
girl  was  to  be  believed,  and  the  Doctor  was  correct  in  his 
opinion,  and  the  jury  believed  it,  the  ofiense  was  mad  a  out, 
and  that  it  was  the  duty  of  the  jury  to  convict.     That  peno- 


V 


172  IN  THE  SUPREME  COtrRT. 

State  V.   Gray. 

tration  was  sufficient,  and  emission  not  necessary  to  be  prov- 
en.    Defendant's  counsel  excepted. 

Verdict  for  the  State.     Judgment.     Appeal  by  defendant. 

Attorney  General^  for  the  State. 
GovTell^  for  the  defendant. 

Battle,  J.  The  main  question  in  this  case,  and  the  only 
one  which  we  deem  it  necessary  to  notice  particularly,  is, 
whether  upon  an  indictment,  under  our  statute,  for  carnally 
knowing  and  abusing  a  female  child  under  the  age  of 
ten  years,  it  is  necessary  to  prove  the  emission  of  seed,  in 
addition  to  the  proof  of  penetration.  This  question  has  not 
hitherto  been  before  the  Supreme  Court  of  this  State  for  ad- 
judication, either  with  regard  to  this  crime  or  that  of  bug- 
gery. We  are  nnder  the  impression,  however,  that  on  the 
circuits,  proof  of  both  penetration  and  emission  have  been, 
genei'ally,  deemed  necessary,  and  have  been  required  for  the 
'■conviction  of  prisoners  charged  with  either  of  these  offenses. 

In  England,  the  contrariety  of  opinion,  as  to  the  law  on 
this  subject,  among  lier  greatest  writers  and  Judges,  is  re- 
anarkable.  Lord  Coke,  in  his  3  Inst.  59-'60,  says  that  penetra- 
tion only  is  necessarj'-  to  consummate  the  offense,  while  in  his 
12  Rep.  37,  proof  of  both  penetration  and  emission  was  held 
to  be  indispensible  for  the  conviction  of  the  offender.  Lord 
Hale  seems  likewise  to  have  entertained  different  opinions 
at  different  times  ;  see  1  Hawk.  Pie.  chap.  4,  sec.  2;  chap.  41, 
sec.  1,  and  1  Hale  P.  C.  628.  In  1721.  a  case  was  brought 
before  eleven  Judges  upon  a  special  verdict,  when  six  of  them 
thought  botli  ])eneti'ati0n  and  emission  were  necessary,  while 
the  other  five  deemed  penetration,  only,  to  be  sufficient.  The 
Judges  being  divided,  it  was  proposed  to  discharge  the  spe- 
cial verdict  and  indict  the  prisoner  for  a  misdemeanor;  see 
l|East  P.  Cr.  437.  After  that  time,  for  about  sixty  years,  the 
weight  of  judicial  authority  seemed  to  be  in  favor  of  requir- 
ing prosf  of  penetration  only.  But  in  1781,  a  case  occurred 
befone   Buller,   Judge,  in   whicli  the  jury   found  there  was 


DECEMBER  TERM,  1860.  173 


State  V.   Gray, 


penetration,  but  no  emission,  whereupon  the  learned  Judo^ 
respited  the  prisoner  until  he  could  obtain  the  opinion  of  the 
other  Judges.  Two  of  them,  to  wit,  Lord  Loughbokough  and 
Heath,  J.,  held  with  him,  that  the  offense  was  coinplete  ; 
but  eight  others,  including  Lord  Ch.  B.  Skynnkr  and  Lord 
Mansfield,  were  of  a  contrary'  opinion,  upon  the  ground,  that 
carnal  knowledge  must  include  both  penetration  and  emis- 
sion. They  held,  however,  that  the  latter  might  be  inferred 
from  the  former,  unless  the  contrary  appeared  probable  from 
the  circumstances ;  as,  for  instance,  where  the  offender  was 
frightened  away  by  the  approach  of  other  persons  before  he 
had  hud  his  will  of  his  victim.  The  opinion  of  the  majority 
of  the  Judges  in  this  case,  prevailed,  without  nuicli  question, 
until  the  year  1829,  Mdien,  by  the  statute  of  9th  Geo.  i,  chap. 
31,  it  was  declared  (after  the  recital  that  many  offenders  had 
escaped  on  account  of  the  difficulty  of  the  proof  in  such 
crimes)  that  "  it  shall  not  be  necessary,  in  any  of  those  cases, 
to  prove  the  actual  emission  of  seed,  in  order  to  constitute  a 
carnal  knowledge,  but  that  the  carnal  knowledge  shall  be  deem- 
ed complete  upon  the  proof  of  penetration  only." 

We  have  already  stated  our  belief  of  what  has  been  the 
prevailing  opinion  in  this  State,  and  in  that  opinion,  we  entire- 
ly concur.  Our  statute  law,  with  regard  to  these  offenses,  is 
now,  and  has  been  heretofore,  the  same  as  that  which  existed 
in  England,  prior  to  the  statute  of  9th  George  4,  above  refer- 
red to,  and  their  adjudications  upon  their  statutes,  have,  no 
doubt,  influenced  our  Judges  to  adopt  the  same  construction 
upon  ours.  It  is  an  argument,  of  no  little  weight,  in  lavor  of 
that  construction,  that  a  boy,  under  the  age  of  fourteen  years, 
cannot  be  guilty  of  the  offense  of  rape,  because,  until  he  ar- 
rives at  about  that  period  of  life,  he  is  incapable  of  emitting  seed. 
Such  has  always  been  considered  to  be  the  law  of  England, 
and  it  has  very  lately  been  decided  to  be  the  law  of  this  State  ; 
see  Hex  V.  Elderslaw,  14  Eng.  C.  L.  Rep.  367  ;  StaU  v.  Pugh, 
7  Jones,  61. 

In  the  case  now  before  us,  the  presiding  Judge  might  have 
submitted  the  facts  to  the  jury  and  left  it  to  them  to  make  the 


174  IN  THE  SUPKEME  COUET. 

Lander  v.   McMillan. 

inference  that  there  was  emission,  if  tliey  believed  that  there 
was  penetration.  If  the  facts  were  found  to  be  as  testified  by 
the  witnesses,  then  the  jury  would  have  been  justified  in  ren- 
dering their  verdict,  that  the  complete  offense  had  been  com- 
mitted ;  but  as  our  Legislature  has  not  yet  passed  an  act  sim- 
ilar to  that  of  9th  George  4,  his  Honor  erred  in  telling  the 
^ury,  that  proof  of  emission  was  not  necessary.  For  this  error, 
the  prisoner  is  entitled  to  have  the  judgment  reversed,  and  a 
<oenire  de  novo. 

Per  Curiam,        Judgment  reversed,  and  a  venire  de  novo. 


State  upon  the  relation  of  WILLIAM  LANDER,  Solicitor,  v.  A.  B.  McMIL- 
LAN  et  al,  Justices  of  Alleghany. 

Where  an  act  of  Assembly,  establishing  a  new  county,  appointed  commis- 
sioners, by  name,  to  ascertain  a  site,  and  purchase  a  tract  of  land  for  a 
county  town,  and  required  the  justices  of  the  county  to  appoint  commis- 
sioners to  lay  off  lots  and  sell  them,  it  was  held  not  to  be  a  sufficient  return 
to  an  alternative  mandamus  to  compel  the  justices  to  the  performance  of 
their  duties,  to  allege  that  the  locating  commissioners,  in  discharging  their 
duties,  were  prompted  by  improper  motives. 

Where  an  act  of  Assembly,  establishing  a  new  county,  made  it  the  duty  of 
certain  commissioners,  to  purchase  a  tract  of  land,  and  having  taken  a  deed 
for  it,  to  file  such  deed  in  the  office  of  the  County  Court,  and  then  for  the 
justices  of  the  county  to  do  certain  acts  prescribed,  it  was  held  that  the  jus- 
tices were  not  entitled  to  any  other  notice  that  the  commissioners  had  act- 
ed, than  the  filing  of  such  deed ;  especially  as  no  notice  is  required,  by  the 
act,  to  be  given  them. 

The  proper  way  for  the  justices  of  a  county  to  make  return  to  a  mandamus, 
is  for  them  to  convene,  and  a  majority  being  present,  to  fix  upon  the  facts 
they  mean  to  rely  on  by  way  of  defense,  and  appoint  some  one  of  their 
body  to  make  affidavit,  and  to  do  all  other  things  required  by  the  proceed- 
ing. 

(McKay  v.  Justices  of  Harneit,  4  Jones'  Rep.  180,  cited  and  approved.) 


DECEMBEK  TERM,  1860.  175 

Lander  v.  McMillan. 

Motion  for  a  peremptory  mandmnus^  heard  before  Os- 
BOKNE,  J.,  at  the  Spring  Term,  1860,  of  Ashe  Superior  Court. 

The  petition  sets  fortli  tlie  act  of  Assembly,  laying  off  and 
establisliing  tlie  county  of  Alleghany,  and  that  by  a  supple- 
mental act  passed  at  the  same  session,  (1858)  five  persons, 
naming  them,  were  appointed  commissioners  to  locate  the 
county  seat  of  said  county,  at  or  as  near  tlie  geographical  centre 
of  the  said  county,  as  to  them  should  seem  practicable,  which 
M'as  to  be  called  "  Sparta  ;"  where  the  court-house  and  other 
public  buildings,  were  to  be  erected  ;  and  they  w^ere  required 
to  purchase,  or  receive  by  donation,  a  tract  of  land,  to  con- 
tain not  more  than  one  hundred  acres,  and  to  take  a  convey- 
ance therefor,  to  the  chairman  of  the  county  court.  The  pe- 
tition sets  forth  further,  that  the  commissioners  appointed  by 
the  said  act,  performed  their  duty  by  causing  a  survey  to  be 
made  of  the  new  county,  and  having  thus  ascertained  the 
centi'c,  they  fixed  upon  a  point  near  tiiereto,  on  the  land  of 
one  James  H.  Parks,  and  took  a  deed  from  the  said  Parks, 
and  two  others,  conveying  to  the  chairman  of  the  c  ounty 
court  of  Alleghany  county,  and  his  successors,  fifty  acres  of 
land,  for  the  purposes  declared  in  the  said  act  of  Assembly, 
and  delivered  the  same  to  Allen  Gentry,  clerk  of  the  county 
court  of  said  county,  in  whose  hands  it  still  is. 

The  petition  further  states,  that,  by  the  8th  section  of  tlie 
said  act  of  Assembly,  the  justices  of  the  county  court,  at  the 
first  session,  a  majority  being  present,  are  required  to  appoint 
five  commissioners,  to  lay  off  the  lots  of  the  said  town,  and 
after  designating  such  as  shall  be  retained  for  public  use, 
shall  expose  to  public  sale  the  residue  of  the  said  lots,  at  such 
time  and  in  such  manner  as  the  Court  may  direct,  taking 
bonds  and  directing  the  justices  to  apply  the  proceeds  to  the 
erection  of  the  public  buildings. 

Tlio  ])etition  sets  forth,  that  the  justices  of  the  County  Court, 
naming  them,  ajjpointed  the  commissioners  required,  but 
gave  them  no  instructions  in  what  manner,  and  at  what  time 
to  make  the  sale  of  the  lots,  and  at  the  next  term  of  the  Court, 
a'majority  being  present,  they  revoked  the  appointment  there- 


176  I]^  THE  SUPEEME  COUET. 

Lander  v.  McMillan. 

tofore  made,  and  directed  them  not  to  proceed  in  the  busi- 
ness, and  that  tliey  liave  tailed  and  refused,  and  still  fail  and 
refuse  to  appoint  any  other  commissioners,  or  to  give  any  in- 
structions to  those  appointed,  touching  the  laying  off  and 
selling  the  lots  and  laying  off  sti'eets  of  the  said  town,  or  to 
do  any  other  act  in  the  discharge  of  sneh  their  duty. 

The  petition  avers  that  the  said  justices  were  fully  aware  of 
the  proceedings  of  the  locating  commissioners  in  surveying 
the  count}^ — fixing  on  a  site  and  taking  a  deed  for  the  land 
purchased,  and  of  its  existence  ia  the  hands  of  the  clerk  of 
the  county  court. 

The  prayer  is  for  a  mandamus,  commanding  the  justices  to 
discharge  their  duty,  in  the  premises,  or  show  good  cause  to 
the  contrary. 

The  petition  was  verified  in  proper  form,  and  the  writ  of 
alternative  mandamus  issued,  and  was  served  on  the  justices 
of  the  said  count}^  of  Alleghany.  At  the  Spring  Term,  1860, 
of  Ashe  Superior  Court,  which  had  jurisdiction  of  the  case, 
several  of  the  justices  of  the  peace  made  return,  that  they 
Avere  willing  and  anxious  to  proceed  in  the  discharge  of  their 
duty,  according  to  the  requirements  of  the  act  of  Assembly, 
but  that  they  were  over-ruled  and  prevented  by  tiie  other 
justices  of  the  county,  who  constituted  a  majority.  Tiie  oth- 
er justices,  being  the  majority,  without  having  called  a  ses- 
sion, professed  to  make  return  through  A.  B.  McMillan,  and 
alleged  for  their  retura,  that  the  commissioners  appointed  to 
fix  upon  a  site  for  the  county  town,  in  performing  that  duty, 
did  not  consult  their  own  judgments,  but  left  it  to  a  vote  of 
the  people  of  the  new  county,  who  determined  on  the  place 
now  insisted  on,  and,  secondly,  that  the  locating  commission- 
ers had  never  notified  the  justices  of  their  action  in  the  pre- 
mises. 

The  Court  decided  that  the  return  was  insuflicient,  and  or- 
dered a  peremptory  mandamus  to  issue,  from  which  the  de- 
fendants appealed. 

Cru7?vpler,  for  the  plaintiffs. 

Boyden,  for  the  defendants. 


DECEMBER  TEJRM,  1860.  177 

Lander  v.  McMillan. 

Battle,  J.  Tlie  relators  having  heretofore  obtained  a  writ  of 
alternative  mandamus  against  the  defendants  from  the  Judge 
of  the  Superior  Court  of  Law,  for  the  county  of  Ashe,  to 
which  the  defendants  made  their  return,  in  which  they  set 
forth  the  reasons  why  they  had  not  performed  the  duties  re- 
quired of  tliem,  and  upon  that  return,  the  Court  having  made 
an  order  for  a  peremptory  mandamus,  the  defendants  took  an 
appeal  therefrom  to  the  Suj^reme  Court. 

The  proceedings  are  founded  upon  the  7th  and  8th  sections 
of  the  act  of  1858,  chapter  4,  entitled  "  An  act  supplemental 
to  an  act  to  lay  off  and  establish  a  county  by  the  name  of  Al- 
leghany, passed  by  the  present  session  of  the  General  Assem- 
bly." The  7th  section  required  of  certain  persons,  therein 
named  as  commissioners,  to  select  and  locate  a  site  for  the 
county  town  at,  or  as  near  the  geographical  centre  of  the 
county  as  practicable,  and  for  that  purpose,  to  purchase,  or 
obtain  by  donation,  a  tract  of  land  of  not  more  tlian  one  hun- 
dj-ed  acres,  "  to  be  conveyed  to  the  chairman  of  the  county 
court  and  his  successors  in  office,  for  the  use  of  the  said  coun- 
ty." This  duty,  the  relators  alleged  in  their  petition,  had 
been  performed,  and  the  object  of  the  mandamus  prayed  for, 
was  to  compel  the  defendants  to  appoint  five  commissioners 
"  to  lay  off  the  lots  of  the  said  town,"  and  to  perform  the  oth- 
er duties  required  of  them  by  the  8th  section  of  the  act. 

The  only  facts  set  out  in  the  return  of  the  defendants, 
upon  which  their  counsel  relied  in  the  argument  here,  in 
opposition  to  the  order  for  the  peremptory  mandamus,  are, 
first,  that  tiie  commissioners,  who  were  appointed  to  locate 
and  select  a  town  for  the  county  seat,  did  not,  in  performing 
that  duty,  act  upon  their  own  judgments,  but  upon  the  result 
of  a  vote  of  a  majority  of  those  citizens  of  the  new  county, 
who  voted  upon  the  subject ;  and,  secondly,  that  the  said 
commissioners  had  never  notified  the  defendants,  as  justices, 
either  in  writing  or  verbally,  that  they  had  selected  a  site  for 
the  county  town,  and  purciiased,  or  obtained  by  donation,  the 
land  upon  which  it  was  to  be  located. 

We  are  decidedly  of  opinion,  that  neither  of  these  objec- 

12 


178  IN"  THE  SUPEEME  COURT. 

Lander  v.  MoMillan. 

tions  can  avail  the  defendants.  The  justices  of  the  county 
court  have,  clearly,  no  right  to  go  behind  the  action  of  the 
locating  commissioners,  and  enquire  by  what  motives  they 
were  prompted  in  the  performance  of  their  duty.  The  commis- 
sioners did  precisely  what  they  were  authorised  and  required 
by  law  to  do,  and  it  would  be  singular,  indeed,  if  the  validity 
of  their  act  depended  upon  the  motives,  good  or  bad,  by  which 
they  were  actuated  in  doing  it. 

With  regard  to  the  second  objection,  it  is  admitted  by  the 
defendants  that  the  commissioners  liad  taken  a  deed,  by  which 
the  grantor  conveyed  fifty  acres  of  land  to  the  chairman  of 
the  county  court,  for  the  use  of  the  county,  in  which  deed, 
however,  one  acre  was  excepted.  It  is  admitted  that  this  deed 
was  deposited  in  the  office  of  the  clerk  of  the  county  court, 
and  the  defendants  knew  that  fact.  That  act  of  the  locating 
commissioners,  so  far  as  we  can  see,  was  all  that  the  law  con- 
templated, in  order  to  make  it  the  duty  of  the  defendants  to 
appoint  commissioners  for  performing  the  duties  enjoined  by 
the  8th  section  of  the  act.  We  cannot  discover  that  the  loca- 
ting commissioners  were  required  to  give  any  kind  of  notice 
to  the  defendants,  of  what  they  had  done,  it  being  supposed 
that  when  the  deed  for  the  land,  which  they  were  required  to 
procure,  was  filed  in  the  office  of  the  clerk  of  their  court, 
they  would  know  it,  and  would  thereupon  immediately  pro- 
ceed to  appoint  commissioners  for  laying  out  the  lots  and 
streets  of  the  town,  selling  lots,  &c.,  so  that  the  public  build- 
ings of  the  county  might  be  erected  as  soon  as  practicable. 

We  have  considered  the  case  as  if  all  the  proceedings  were 
proper;  but  in  truth,  it  was  irregular  tliat  two  returns 
should  have  been  made,  one  by  a  majority  and  the  other  by 
a  minority  of  the  justices  of  the  county.  As  we  said  in  the 
case  of  3IcCoy  v.  The  justices  of  Harnett^  4  Jones'  Rep., 
180.  "A  mandamus  to  'the  justices  of  a  county,'  issues 
against  them  as  a  hody^  and  not  as  separate  individuals  ;  so 
they  must  make  'a  return'  as  a  body.  To  this  end,  it  is  proper 
for  the  justices  to  convene  and,  a  majorit}^  being  present,  as 
for  the  transaction  of  any  other  county  business,  to  agree  upon 


I 


DECEMBER  TERM,  1860.  179 

Little  V.  Hobbs. 

the  facts  which  arc  to  be  set  out  for  their  return.  lu  this, 
as  in  other  cases,  a  majority  of  those  present  will  govern. — 
They  will  then  appoint  some  one  of  their  body,  who,  as  their 
agent,  is  to  make  the  proper  aflidavit,  and  do  all  other  acts 
and  things  which  may  become  necessary  in  the  course  of  their 
proceeding'."  But,  notwithstanding  the  irregularitj'-  to  which 
we  have  alluded,  as  the  parties  and  their  counsel  have  trea- 
ted the  return  of  a  majority  of  the  justices,  as  "  tiie  return  of 
the  justices  of  the  county"  we  have  regarded  it  as  such,  and, 
so  regarding  it,  we  find  nothing  in  it  to  prevent  the  relators 
from  having  an  order  for  a  peremptory  mandamus  against 
them  ;  the  judgment  of  the  Superior  Court  to  that  effect,  must 
therefore  be  affirmed. 

Pek  Cukiam,  Judgment  affirmed. 


HUGH  LITTLE  v.   G.  B.  HOBBS,  Administrator. 

Though  a  covenant  be  with  two  or  more,  jointly,  yet  if  the  interest  and 
cause  of  action  of  the  covenantees  be  several,  the  covenant  shall  be  taken 
to  be  several,  and  each  of  the  covenantees  may  bring  an  action  for  his  par- 
ticular damage,  notwithstanding  the  Avords  of  the  convenant  are  joint. 

Tjiis  was  an  action  of  covenant,  tried  before  Dick,  J.,  at 
the  Kail  Term,  1860,  of  Lincoln  Superior  Court. 

The  instrument  declared  on,  was  executed  by  most  of  the 
children  of  "William  Little,  who  had  then  lately  died,  posses- 
sed of  a  large  estate,  and  certain  of  his  children  had  exhibi- 
ted a  script,  whicli  purported  to  be  a  will,  but  which  was  de- 
nied by  the  parties  to  this  covenant.  The  covenant  recites 
the  invalidity  of  the  will,  and  binds  the  parties  interchangea- 
bly to  employ  counsel  and  to  bear  an  equal  share  of  the  ex- 
pense of  controverting  the  will.  The  covenant  then  proceeds  as 
follows:  "and  it  is  further  expressly  stipulated  and  agreed  upon 


180  I^  THE  SUPKEME  COURT. 

Little  V.  Hobbs. 

by  all  the  contracting  parties,  that  if  tlie  will  is  set  aside,  and  the 
estate  is  to  be  divided  between  the  heirs-at-law  and  distributees 
of  the  said  William  Little,  deceased,  that  Hugh  Little  and  Pat- 
sey  or  Martha  Little,  the  two  oldest  children  of  the  said  Wil- 
liam Little  (who  are  said  to  have  been  born  out  of  wedlock) 
shall  have  an  equal  and  full  share  of  the  said  estate  of  Wil- 
liam Little."  Hugh  Little  and  Patsey  botli  signed  the  bond 
and  contributed  to  carrying  on  the  suit,  whicli  resulted  inset- 
ting aside  the  script  and  a  division  of  the  estate  among  the 
heirs-at-law  and  next  of  kin,  from  M'hich  the  two  oldest,  Hugh 
and  Patsey,  were  excluded  on  account  of  their  illegitimacy. 
Hobbs,  the  defendant,  after  the  execution  of  the  covenant, 
married  one  of  the  co-obligors,  Polly  Sherrill,  and  as  her  hus- 
band and  administrator  (she  having  died  in  the  mean  time) 
received  a  large  amount  of  money  and  estate,  say  $2500,  but 
refused  to  contribute  any  thing  to  Hugh  and  Patsey  ;  on  ac- 
count of  which  refusal,  each  of  them  brought  suit  separately 
against  liim  on  the  covenant.  In  this  case,  the  counsel  for  the 
defendant,  objected  to  the  form  of  the  action,  because  the  two 
had  not  sued  jointly.  The  Court,  upon  the  point  reserved, 
ruled  that  the  action  was  well  brought,  and  the  defendant 
appealed, 

Bo^jden^  for  the  plaintiff.  « 

Thompson^  for  the  defendant. 

Manly,  J.  Several  objections  were  made  to  plaintiff^s 
recovery  in  this  case,  all  of  which  have  been  abandoned  in 
this  Court,  except  the  second,  in  order,  viz.,  that  there  were  J 
two  covenantees  in  that  part  of  the  instrument,  the  breach  of  '' 
which,  IS  assigned  as  the  ground  of  this  action,  and  that  these 
should  have  joined.  We  do  not  think  this  objection  can  be 
sustained. 

The  parties  to  this  covenant  other  than  Hugli,  and  Patsey 
Little,  bind  themselves,  each  separately,  to  the  two  latter  in 
the  sum  of  five  thousand  dollars,  to  allow  the  said  Hugli  and 
Patsey  a  full  share  of  their  father's  estate.     The  interest  of  the 


k /•  V    k       ^.- •J 


DECEMBER  TERM,  1860.  181 

Little  V.  Hobbs. 

covaiitees,  iu  this  stipulation,  is  manifestly  several.  Dama- 
ges for  its  violation  result  to  each,  irrespective  of  the  other, 
and  consequently,  each  ma}'  maintain  an  action,  according  to 
the  distinction  taken  in  the  ease  of  EccJeston  and  wife  v. 
Clijys/iam,  1  Sann.  Rep.  153.  In  a  note  to  that  case,  it  is 
stated,  that  though  a  covenant  be  with  two  or  more,  jointly, 
yet,  if  the  interest  and  cause  of  action  of  the  covenantees  be 
several,  the  covenant  shall  be  taken  to  be  several,  and  each 
of  the  covenantees  luay  bring  an  action  for  his  particular  dam- 
age, notwithstanding  the  words  of  the  covenant  are  joint,  and 
for  tliis,  there  are  cited  a  number  of  authorities. 

Tlie  law  now  seems  to  be  settled,  that  the  insertion,  or  omis- 
sion of  words  of  severance,  su-eh  as  "  with  them  and  each  of 
thcm^''  can  make  no  difference  as  to  the  covenantees,  but  that 
the  action  will,  in  all  cases,  follow  the  interest,  without  re- 
gard to  the  words  of  the  covenant. 

Tiic  paragraph  cited,  on  the  argument,  from  1  Chitty's 
Pleading,  13,  is  based  upon  a  case.  Peine  v.  Bury,  reported 
in  10  E.  Com.  L.  Rep,  108,  and  the  language  of  the  author  is 
to  be  interpreted  with  reference  to  the  principles  decided  in 
that  case.  It  was  a  covenant  with  three  persons,  that  if  cov- 
enantor's wife  survived  him,  that  his  heirs,  executors  and  ad- 
inistrators  should  pay  to  them  an  annuity  for  her.  Here,  a 
joint  action  was  held  necessary,  for  the  reasons,  as  stated  by 
the  Judges  wlio  delivered  the  opinions,  that  it  was  a  trust, 
and  the  covenantees  trustees,  who  were  not  to  have  awj  payt 
of  the  uK^icy  to  tlieir  own  use,  hwi  jointly  receive  tlie  same 
as  a  security  for  the  execution  of  the  trust,  like  a  trust  con- 
ferred, in  a  similar  way,  upon  executors. 

This  case  recognises  the  distinction  taken  by  Williams  in 
Iiis  notes  to  Saunders,  referred  to  aliove,  viz.,  that  the  rights 
of  covenantees  as  to  actions  upon  tlic  covenants,  will  jdepend 
upon  the  nature  of  tlieir  interests,  whether  joint  or  several. 

Pee  Curiam,  Judgment  affirmed- 


IN  THE  SUPREME  COURT. 


Commissioners    v.  Patterson. 


COMMISSIONEES  OF  CONCORD  v.  PATTERSON  &  KESLER. 

The  Legislature  may  delegate  a  portion  of  the  general  taxing  power  to  incor- 
porated towJis  for  coi'poration  purposes,  and  it  was  Held  that  the  statute. 
Rev.  Code,  chap.  Ill,  sec.  13,  empoweriDg  the  commissioners  of  incorpor- 
ated towns  to  levy  a  tax  of  twenty-five  dollars  upon  retailers  of  spiiituous 
hquors  by  the  quart  measure  or  under,  was  a  proper  exercise  of  their  power. 

This  was  an  action  of  debt  upon  a  to\vn  ordinance,  stiibmit- 
ted  to  Dick,  J.,  at  the  last  Fall  Term  of  Cabarrus  Superior 
Court,  upon  the  following  ease  agreed. 

Ijy  an  act  of  the  General  Assembly  passed  at  the  session  of 
1S50  and  '51,  (chapter  829,)  the  plaintiffs  are  constituted  a 
corporation  with  all  the  necessary  and  usual  powers  and  pro- 
visions of  municipal  corporations.  Section  30  of  tliat  act, 
provides  that  the  County  Court  of  Cabarrus  shall  grant  no 
license  to  retail  spirituous  liquors  by  the  small  measure  with- 
in said  town,  unless  the  applicant  shall  have  first  obtained 
from  the  board  of  commissionei's  their  certificate  of  their  as- 
sent to  the  same,  and  for  which,  they  are  authorised  to  de- 
mand the  sum  of  ten  dollars  for  the  benefit  of  the  town. 

In  April,  1S57,  among  other  ordinances  passed  and  duly 
published,  was  one  entitled,  "  Town  taxes,"  which  incorpora- 
ted a  provision  of  the  general  law,  entitled  "■Towns,"  (Rev. 
Code,  chap.  Ill,  sec.  13,)  and  levied  a  tax  of  twenty-five  dol- 
lars foi-  a  revenue  "  on  all  persons  (apothecaries  and  drug- 
gists excepted)  retailing  liquors  or  wines  of  the  ii^asnre  of 
a  quart  or  less." 

The  defendants  were  the  owners  of  a  grocery  in  said  toAvn, 
and  sold  liquoi-s  and  wines  by  the  measure  of  a  quart,  they 
had  no  license  to  retail.  They  refused  to  pay  the  tax  of  twen- 
ty-five ^lollars  thus  levied,  and  this  suit  was-  brought  b>y  a 
warrant  to  recover  the  same. 

The  only  question  intended  to  be  submitted  to  tliis  Court 
was,  whether  the  defendants  were  liable  to  this  tax  of  twenty- 
five  dollars. 

On  the  foregoing  facts,  his  Honor  being  of  opinion   with 


DECEMBER  TERM,  1860.  183 

Commissioners   v.  Patterson. 

the  plaintiffs,  gave  judgment  pro  forma  accordingly.     De- 
fendants appealed  to  this  Court. 

Fo^ole,  for  the  plaintiffs. 
V.  C.  jBarringer,  for  the  defendants. 

Manly,  J.  We  are  not  informed  upon  what  ground  the 
recovery  is  resisted  in  this  ease,  and  are  unable  to  discover 
any.  The  general  law,  empowering  our  incorporated  towns 
to  raise  a  revenue  b\"  taxing  certain  specified  objects,  pro- 
vides that  a  tax,  not  exceeding  twent3^-five  dollars,  may  be 
levied  on  all  persons  (apothecaries  and  druggists  excepted,) 
retailing  and  selling  liquors  and  wines  of  the  measure  of  a 
quart  or  less.  The  tax  in  question  seems  to  be  in  strict  con- 
foi'mity  with  this  power.  The  power  of  the  Legislature  to 
tax  dealers  in  spirituous  liquors  at  will,  restrained  only  b}^ 
their  sense  of  justice  and  the  interests  of  the  country,  we  take 
to  be  unquestionable.  The  legislative  autiiority  to  delegate 
this  power  has  been  exercised  from  the  foundation  of  the  gov- 
ernment, and  is  equally  well  fixed.  We  are  not  aware  of  any 
thing  in  the  laws,  by  which  these  powers  have  been  parted 
with  or  abridged. 

The  indictable  character  of  a  retailing  in  quantities  less 
than  a  quart  without  license,  does  not  at  all  touch  the  taxing 
power. 

By  the  general  revenue  law,  a  tax  in  behalf  of  the  State  of 
five  per  .cent,  is  levied  on  capital  invested  by  dealers  in  li- 
quors, etc.,  Bev.  Code,  chap.  99,  sec.  2-1. 

This  exercise  by  the  Legislature  of  the  power  to  tax,  and 
the  delegation  of  it  at  the  same  time  within  certain  limits,  in 
respect  to  the  same  objects,  is  of  fiequent  occurrence  in  the 
code  of  tiie  State. 

The  two  taxes  arc  imposed  for  different  purposes.  It  would 
be  perfectlj'  competent  for  the  Assembly  to  do  both  ;  to  tax 
an  object  to  a  certain  extent  for  one  purpose,  and  again  to  tax 
it  in  a  similar  way  for  another  purpose.     And  we  see  no  good 


184  m  THE  SUPKEME  COURT. 

McDowell  V.  Bowles. 

reason  wh}'  it  may  not  divide  and  delegate  a  poi'tion  of  this 
power  when  it  is  necessary  or  expedient  to  do  so. 

The  government  of  jN^orth  Carolina,  in  respect  to  the  power 
of  taxation,  has  been  conducted  in  this  way  from  the  begin- 
ning. 

The  Legislature  exercises  directly  a  portion  of  the  taxing 
power  for  State  purposes,  the  county  court,  under  authority 
from  the  Legislature,  exercises  anotlier  portion  for  county  pur- 
poses, and  incorporated  towns  still  another  portion  for  corpor- 
ation purposes,  all  upon  the  same  objects  of  taxation. 

We  are  of  opinion  that  the 2>''0  /on/ia  }\\(\gment  below,  for 
the  plaintiff,  is  correct. 

Per  Curiam,  Judgment  affirmed. 


ABNER  C.  McDowell  v.  WILLIAM  BOWLES. 

It  is  not  actionable,  per  se,  to  charge  a  white  man  with  being   a   free  negro  j 
and  it  does  not  alter  the  case,  that  such  man  was  a  minister  of  the  gospel. 

This  was  an  action  on  the  case  for  slajStder,  tried  before 
Dick,  J.,  at  the  last  Fall  Term  of  Surry  Superior  Court. 

The  plaintiff  declared  that  he  was  a  clear  blooded  white 
man,  and  a  regular  licensed  minister  of  the  Baptist  Chui'ch  ; 
that  the  defendant  said  of  him  at  a  constable's  election,  where 
plaintiff'  came  forward  to  vote,  that  he  (plaintiff)  had  no  right 
to  vote  ;  that  he  (plaintiff)  M-as  a  free  negro,  and  said,  "  if  yon 
let  free  negroes  vote,  here,  let  Zach.  Warden  (who  is  a  free 
negro)  vote  also."  There  was  no  special  damage  laid  or 
proved. 

The  defendant  moved  to  nonsuit  plaintiff',  upon  the  ground, 
that  the  words  alleged  to  have  been  spoken,  were  not  action- 
able. His  Honor  being  of  that  opinion,  ordered  a  nonsuit, 
from  which  plaintiff  appealed. 


DECEMBER  TERM,  18G0.  185 

McDowell  V.  Bowles. 

Crumplei\  for  tlie  plaintiff. 
Boyden^  for  the  defendant. 

Manly,  tT.  We  are  not  aware  of  any  class  of  defamatory 
words,  wliicli  are  hold  to  be  actionable,  that  would  end)race 
the  language  complained  of  in  this  case.  The  three  classes 
most  usually  found  in  elementaiy  books,  are : 

1.  AVoi'ds  that  impute  a  crime  or  a  misdemeanor,  punisha- 
ble b}'  an  infamous  penalt_y. 

2.  Words  that  impute  an  contagious  disease,  by  wliicli  the 
part}'  impugned  would  be  excluded  from  society. 

3.  Words  derogatory  to  one  in  resj)ect  to  his  office,  ]>rofes- 
sion  or  calling. 

The  case  before  us,  is  not  embraced  in  any  of  these  classes. 

It  is  obviously  not  in  the  first.  It  is  not  in  the  second,  for 
the  reason  that  this  class  has  been  strictly  confined  to  tiie  im- 
putation of  certain  diseases  of  a  loathsome  or  pestilential  na- 
ture. It  is  not  in  the  third,  because  the  offensive  language  is 
not  spoken  of  the  plaintiff  in  respect  to  his  calling,  wlucli  is 
indispensable  to  the  actionable  character  of"  words  in  tiiat 
class.  It  is  stated  in  the  declaration,  that  the  plaintiff  was  a 
minister  of  the  gospel.  Conceding  tiiis  to  be  one  of  the  cal- 
lings which  falls  within  the  rule  of  law  in  respect  to  slander, 
(which  is  by  no  means  certain)  yet,  its  sacred  character  will 
not  make  language  actionable,  which  would'  not  be  sd,  if  used 
of  a  ]n-ivate  ])erson,  unless  such  language  be  of  and  concern- 
ing him  in  his  caj)acity  of  minister. 

Thus  stands  the  law,  as  we  conceive,  in  respect  to  words  al- 
leged to  be  actionable  of  themselves;  with  respect  to  all  other 
disparaging  woixls,  outside  of  tiie  limitation  prescribed,  spe- 
cial damage  must  be  alleged  and  proved. 
•  Concurring  with  the  Court  below,  that  the  words  are  not 
subject  to  an  aciion  without  an  allegation  and  proof  of  special 
damage,  the  judgment  of  nonsuit,  in  the  Court  below,  is  af- 
firmed. 

Per  Curiam,  Judgment  affirmed. 


ISC  m  THE  SUPREME  COURT. 


Kinsey  v.  Magistrates  of  Jones. 


WILLIAM  C.  KINSEY  v.  THE  MAGISTRATES  OF  JONES. 

The  justices  of  a  county  arc  not  lesponsible  to  the  owner  of  j^roperty  for  in- 
juries to  it,  occasioned  by  defects  in  puhhc  bridges  under  their  control. 

This  was  an  action  of  tlie  cask,  submitted  to  Bailky,  J.,  at 
Fall  Term,  1S60,  of  Jones  Superior  Court,  upon  the  following 
case  agreed. 

The  plaintiff's  negro,  with  a  mule  and  cart,  while  crossing 
ov^er  a  bridge  in  the  county  of  Jones,  were  precipitated  into 
the  river  Trent,  by  the  breaking  in  of  the  bridge,  and  in  con- 
sequence thereof,  tlie  mule  and  cart  were  lost.  It  was  admit- 
ted that  the  bridge  was  dangerous,  and  that  the  magistrates 
knew  it,  but  it  was  also  admitted  that  they  had  entered  into 
a  contract  with  a  person  fully  competent  to  repair  said  bridge, 
as  soon  as  they  were  aware  of  its  dangerous  condition,  but 
that  he  had  neglected  to  do  so.  It  Avas  agreed,  tliat  if  the 
Court  should  l)e  of  opinion^  that  the  defendants  are  liable  in 
this  action,  judgment  should  be  rendered  for  the  plaintiff,  for 
the  sum  of  one  hundred  and  seventy  dollars;  if  the  contrary, 
that  judgment  of  nonsuit  should  be  entered.  The  Court  be- 
ing of  opinion  that  the  action  could  not  be  sustained,  judg- 
ment of  nonsuit  was  accordingly  entered.  Plaintift  appealed 
to  this  Court. 

J.    ir.  Uryan,  for  the  plaintiff. 
Washington,  for  the  defendant. 

Manly,  J.  We  concur  with  the  Court  below,  in  the  opin- 
ion that  this  action  cannot  be  sustained.  The  justices  cannot 
be  held  responsible,  either  in  criminal  prosecutions  or  civil 
actions  for  deficiencies  in  tlie  public  highways  and  bridges. — 
They  are  charged  with  certain  duties  in  respect  to  them,  but 
wlien  these  are  performed,  their  otiice  ceases,  and  the  over- 
seers and  contractors  are  responsible  to  the  country  and  to  citi- 
zens. 

That  they  are  not  criminally  responsible,  except  for  the 
non-performance  of  the  specific  duties  assigned  them  by  law, 
is  decided  by  the  case  of  The  /State  v.  The  justices  of  Lenoir, 


DECEMBER  TERM,  1860.  18T 

Kinsey  v.  Magistrates  of  Jones. 

4PLiwks,  194;  and  that  they  are  not  responsible  at  all,  in 
civil  actions  to  the  citizens  of  the  countiy,  is  also  settled  by 
authorit}^,  and  the  uniform  practice  of  the  State. 

We  content  oui'selves  with  referi'ing  to  the  work  of  Angel 
and  Durfee  on  highways,  sec.  2S(),  and  the  cases  there  cited, 
wliich  was  called  to  our  attention  l)y  the  defendant's  counsel, 
in  the  argument. 

In  some  of  the  States  it  seems  provision  has  been  made, 
subjecting  parishes,  townships,  counties  and  the  like,  quasi 
corporations  to  a  limited  responsibility  by  civil  action,  but  it 
is  well  settled  that  there  is  no  sucii  redress  at  common  law. — 
The  reasons  given  are,  that  it  is  a  public  matter,  and  ought  to 
be  reformed  by  presentment ;  and  that  corporations  of  that 
class  have  no  treasury  at  their  disposal,  out  of  which  they 
could  pay  damages  and  no  power  to  provide  any. 

The  justices,  as  a  municipal  body  in  our  system,  act  only 
through  the  medium  of  a  majority  of  its  members,  and  their 
actions,  when  done,  bind  the  body  as  such,  and  not  the  indi- 
viduals of  whom  it  is  composed.  So  their  refusal  or  neglect 
to  act  would  be  the  refusal  or  neglect  of  the  body,  and  render 
it  alone  responsible.  How  is  satisfaction  of  a  judgment, 
against  such  a  body,  to  be  obtained. 

Heretofore,  in  North  Carolina,  redress  against  the  justices 
for  misconduct  or  omission  of  duty,  has  been  sought  through 
the  wi-it  of  mandamus.  Resort  to  this  process  is  based  ui)on 
the  assumption  that  there  is  no  other  legal  remedy,  for  it  is 
onh^  proper  in  that  case,  as  is  shown  in  the  State  v.  Jones, 
1  Ired.,  129  ;  and  the  State  v.  The  justices  of  Moore,  2  Ired., 
430.  The  many  cases  of  mandamus,  found  in  our  reports,  to 
compel  justices  to  perform  their  duties  are,  therefore,  so  many 
judgments  of  our  courts,  by  a  necessar}'  implication  tliat  the 
remedy,  by  private  action,  M'as  not  open  to  tlie  citizen. 

The  novelty  of  this  action  is  evidence  against  it.  Although, 
as  alleged,  it  belongs  to  the  common  law  rights  of  action,  it  is 
without  precedent  so  tar  as  we  know. 

Per  Curiam,  '  Judgment  affirmed. 


18S  IN  THE  SUPREME  COURT. 


Jackson  v.  Hanna. 


EMANUEL  JACKSON  v.  TETER  HANNA,  Adminisimior. 

AVhoro  a  grantor  of  land  in  another  State,  entered  into  a  covenant  of  quiet 
eujoynient,  and  after  his  death,  his  widow  recovered  of  the  grantor  a  sum 
certain  in  heu  of  h-er  dower,  (the  law  of  that  State  slibjecting  all  lands  to 
dower,  of  which  the  husband  was  seized  during  coverture)  it  was  Held 
that  such  recover}'  was  an  eviction,,  and  the  covenantee  was  entitled  to 
recover  the  amount  paid. 

Where  a  covenantee  sued  on  his  covenant  for  quiet  enjoyment,  on  account  of 
a  recovery  of  a  sum  certain  oii'of  hmi  by  the  widow  of  the  covenantor  for 
her  dower,  and  it  appeared  that  only  a  part  of  the  recovery  was  paid  when 
the  suit  v.'as  brought,  and  the  remainder  afterwards  and  before  the  trial,  it 
was  Held  that  the  covenantee  was  entitled  to  recover  tlie  whole  sum. 

The  action  on  a  covenant  of  quiet  enjoyment  is  transitory,  and  though  enter- 
ed into  in  another  State,  may  be  sued  on  in  this  State. 

Tins  was  an  action  of  covenant,  tried  before  Saunders,  J., 
at  the  Special  Term  (June.  I860,)  of  Richmond  Superior 
Court. 

The  plaintiff  declared  on  a  covenant  contained  in  a  deed  to 
hini  from  the  defendant's  intestate,  one  Eli  Meekins.  The 
covenant  is  in  these  words  :  "  and  I  do  hereby  bind  myself, 
my  heirs,  executors  and  administrators,  to  warrant  and  for- 
ever defend  all  and  singular  the  said  premises,  unto  the  said 
Emanuel  Jackson,  his  heirs  and  assigns,  against  myself  and 
my  heirs,  and  against  all  persons  wliomsoever,  lawfully  claim- 
ing, or  to  claim  the  same,  or  any  part  thereof." 

Tiie  ])hiintiff  entered  into  possession  of  the  land,  wliich  is  in 
South  Carolina,  during  the  life-time  of  the  covenantor,  and 
lias  continued  in  possession  ever  since.  After  the  death  of 
the  covenantor,  liis  widow  filed  a  petition  for  dower  in  the 
courts  of  South  Carolina.  It  was  proved  that  by  the  laws  of 
that  State,  tlie  M-idow  of  one  dj'ing  intestate,  is  entitled  to 
her  dower  in  all  the  land  of  which  her  husband  was  seized 
during  the  coverture,  and  that  the  jurj^  may  lay  off  her  dow- 
er in  the  land,  or  may,  in  their  discretion,  if,  in  their  opinion, 
such  assignment  cannot  be  made  without  injury  to  the  inter- 
ests of  the  parties  concerned,  ascertain  Mie  value  of  her  dower, 


DECEMBER  TEEM,  1860.  189^ 


Jackson  v.  Hanna. 


and  direct  the  value  of  tlie  same  to  be  paid  in  money.  In 
this  case,  the  jury  ascertained  the  value  of  the  dower  inter- 
est, and  there  was  a  verdict  and  judgment  against  the  plain- 
tiff in  this  case,  for  $590,08,  with  interest  on  $516,06,  until 
paid,  and  costs  $52,33,  and  an  execution  issued  for  the  same. 
Before  the  bringing  of  this  suit,  the  plaintiff  paid  the  costs  of 
the  proceeding  for  dower,  to  wit,  $52,33,  and  during  tlie  pen- 
dency of  the  suit,  and  before  the  trial,  he  paid  the  whole  judg- 
ment, amounting  to  $712,17. 

There  was  a  verdict  for  the  ])laintitf  for  the  wliole  amount, 
subject  to  the  opinion  of  tlie  Court  upon  the  lav/  of  the  case, 
with  leave  to  set  aside  the  verdict  and  enter  a  nonsuit,  in  case 
it  should  lie  against  the  phiintiff,  or  otherwise  should  give  judg- 
ment for  whatever  the  plaintiff  was  entitled  to. 

His  Honor,  on  consideration,  gave  judgment  for  tlie  amount 
of  the  costs  paid,  ($52,33)  and  tlie  plaintiff  appealed. 

JR.  IL  Battle,  for  tlie  plaintiff'. 
Strange,  for  the  defendant. 

Mania-,  J.  We  interpret  the  warranty  in  the  deed  of  Eli 
Meekins,  of  7th  October,  1851,  a  covenant  for  quiet  enjoy- 
ment, and  after  some  reflection,  conclude  that  the  recovery 
by  the  widow  of  Meekins  of  the  judgment  of  $590,08,  the 
the  suing  out  of  execution  and  enforcing  the  collection  of  the 
same  is,  under  the  circumstances,  an  eviction,  which  entitles 
the  plaintilf  to  his  action  of  covenant  on  the  warranty. 

It  seems,  by  the  law  of  South  Carolina,  the  widow  is  enti- 
tled to  dower  in  all  lands  of  which  her  husband  was  seized 
during  the  coverture,  and  that  the  jury  may  either  assign 
dower  by  an  allotment  of  a  portion  of  the  land,  or  where  tlie 
interests  of  all  concerned  require  it,  by  an  assessment  of  the 
value  of  the  same,  to  be  paid  her  in  money.  Dower  was  as- 
signed in  the  latter  mode,  a  judgment  was  rendered  against 
Jackson  for  the  same,  a  jieri  facias  sued  out  and  the  moneys 
made  thereon.  If  dower  had  been  assigned  by  an  allotment 
of  land,  followed  on  the  part  of  the  widow  by  an  action  of 


190  IN  THE  SUPREME  COURT. 

Jackson  v.  Hanna. 

ejectment,  and  "writ  of  possession  execntcd,  tiie  case  would 
have  been  free  from  all  doubt.  The  case  before  ns,  does 
not  differ  substantially  from  this.  Dower  is  assigned  in  the 
land  in  a  different  mode,  b}'  force  of  the  law,  and  the  plaintiff' 
makes  satisfaction  for  the  same,  under  the  compelling  process 
of  the  law.  Tiiis  is  the  same,  in  all  essential  particulars,  as  a 
dispossession  under  a  superior  title  ^r/'c  tanto — both  being,  in 
substance,  a  disturbance  of  the  possession  by  process  of  law. 

It  has  been  held  in  our  State,  in  the  case  of  CoJjle  v.  Well- 
hom^  2  Dev.  388,  that  the  purchase  of  an  outstanding  title 
established  b}''  an  action  of  ejectment,  was  not  an  eviction. 
The  case  differs  from  the  one  before  us,  in  the  important  par- 
ticular, that  the  purchase  was  voluntary  and  for  the  sake  of 
peace — there  being  no  actual  coercion  or  enforcement  of  the 
superior  title.  The  plaintiff' has  lost  a  part  of  the  thing  bought, 
occasioned  by  the  right  or  claim  of  a  third  person  enforced 
at  law.  This  is  eviction,  and  the  judgment  of  the  Court  be- 
low, in  that  particular,  was  correct. 

We  think  there  was  error,  however,  in  respect  to  the  dam- 
ages held  by  the  Court  to  be  recoverable  in  the  action.  The 
part  of  the  judgment  paid  after  the  suit,  and  before  the  ti'ial, 
was  also  recoverable.  With  respect  to  damage,  we  appre- 
hend the  law  to  be  that  proof  of  such  may  extend  to  all  facts, 
which  occur  or  grow  out  of  the  injury,  even  up  to  the  day  of 
the  verdict — excepting  those  facts,  which  not  only  happened 
since  the  commencement  of  tlie  pending  suit,  but  do,  of  them- 
selves, furnish  sufficient  cause  for  a  new  action.  Indeed,  it  is 
upon  this  general  principle,  that  interest  is  computed  up  to 
the  time  of  the  verdict  in  an  action  for  the  non-pajnnent  of  a 
sum  of  money.  Mr.'  Sedgwick,  in  his  work  on  damages,  says 
(page  104,  6j  "  It  is  agreeable  to  the  principles  of  the  com- 
mon law,  that  whenever  a  duty  has  been  incurred  pending 
the  suit,  for  which  no  satisfaction  can  be  had,  bj  a  new  suit, 
such  duty  shall  be  included  in  the  judgment  to  be  given  in 
the  action  already  depending."  The  enforcing  of  the  judg- 
ment, which  constituted  the  eviction,  having  been  partly  ac- 
complished before  the  suit,  it  follows  upon  the  principles  laid 


DECEMBER  TERM,  1860.  191  ' 

Bond  V.  Warren. 

down,  that  all  the  damage,  resulting  from  the  eviction,  should 
be  given  in  the  present  suit. 

There  are  two  cases  in  the  Massachusetts  I'eports,  which 
appear  to  be  somewhat  analogous  to  this,  upon  the  present 
point ;  Lejfingwell  v,  Elliott.,  10  Pick, ;  Brooks  v.  Moodij, 
20  do.,  474,  where  it  is  held,  in  actions  upon  covenants  of 
wfirranty  against  incumbi'anccs,  the  i)laintilfs  may  recov- 
er the  amounts  fairly  and  justly  advanced  to  remove  the  in- 
cumbrances, although  paid  after  the  suit  begins. 

A  (juestion  has  been  raised  whether  this  be  a  local  or  tran- 
sitory action,  and  therefore  whct])or  it  bo  well  brought  in  this 
State.  T'he  action  being  upon  conti'act,  is  ti-ansitor}',  and  is 
well  brouglit.  This  point  is  fully  discussed  and  settled  in  tiie 
case  of  T/mrsley  v.  Plant.,  1  Saun.,  241,  b.  note  0. 

Thcie  should  have  been  a  judgment  below  according  to 
agreement,  with  respect  to  the  points  reserved,  for  the  entire 
amount  of  damage  incurred  to  the  trial,  and  this  judgment 
will  be  accordingly  rendered  here. 

Per  Cukiam,  Judgment  reversed. 


SAMUEL  T.  BOND  v.  THOS.  D.  WARflEN. 

Juries  are  at  liberty  to  infer  the  motives  of  parties  from  their  contUiot,  there- 
fore where,  in  an  aetion  for  an  assault  and  battery,  it  was  proved  that  the 
defendant  came  to  the  house  of  the  pliiintill"  with  whom  he  had  been  be- 
fore on  friendly  terms,  and  said  to  him.  "  How  dare  you  send  a  letter  to 
my  house,"  and  immediately  assaulted  liim,  it  was  hdd  error  m  the  judge 
to  charge  the  jury  that  there  was  no  evidence  that  the  letter  was  offensive 
or  insulting,  and  that  they  could  not  infer  that  it  was  so. 

Tuis  was  an  action  of  trespass  vi   et   annis,  tried    before 
Howard,  J.,  at  Fall  Term,  1860,  of  Chowan  Superior  Court. 
The  phvintiff  introduced  h  witness,  his  daughter,  who  testi- 


192  m  THE  SUPREME  COURT. 

Bond  V.  Warren. 

iiecl  tha.t  in  November,  1S50,  the  detbndant  came  to  the  store 
of  the  phiiutifl",  walked  up  to  him,  and  said,  "  IIow  dare  yon 
send  a  letter  to  my  lionse  ;"'  that  the  plaintitt"  replied,  "What 
do  yon  mean  sir!"  and  that  the  defendant  then  committed  the 
trespass  complained  of.  The  witness  further  testitied,  that  the 
store  of  plaintifl',  and  dwelling  of  defendant,  were  both  in 
Edenton  ;  that  the  defendant  was  a  widower,  with  a  daughter, 
just  returned  from  school,  a  young  lad}^  living  with  him  ;  that 
she  had  never  seen  the  defendant  in  jilantitt" 's  store  before  this 
time,  and  that  she  had  never  heard  of  any  difference  or  ditti- 
culty  between  them  ;  tliat,  so  far  as  she  knew,  and  as  she  be- 
lieved, they  were  on  friendly  tei'ms  before  this.  The  defen- 
dant's counsel  ai'gued  that  a  letter  had  been  sent  to  defen- 
dant's house,  that  it  was  offensive  or  insulting,  and  mightiiave 
been  directed  to  defendant's  daughter. 

The  Court  charged  the  jury,  that  although  thej'  might  infer 
from  the  evidence  that  the  plaintiff'  had  sent  a  letter  to  defen- 
dant's lionse,  there  was  no  evidence  that  the  letter  was  sent 
as  directed  to  defendant's  daughter,  or  that  the  letter  was  of- 
fensive or  insulting ;  that  if  the  fact  was  so,  the  defendant 
should  have  siiown  it,  and  that  as  he  had  not  done  so,  they 
must  not  so  consider -it  in  making  up  their  verdict.  Defen- 
dant's counsel  excepted.  A^erdict  and  judgment  for  plaintiff. 
Appeal  b}^  defendant. 

Johnson  and  Jli/tes,  for  plaintiff". 

Badger,  Collins  and  II.  A.  Gllliavi,  for  defendant. 

Battle,  J.  This  was  an  action  for  an  assault  and  battery, 
committed  by  the  defendant  upon  the  plaintiff",  in  which  the 
plaintiff"  sought  to  recover,  and  did  recover  what  is  called 
vindictive  or  punitor}^  damages  or  smart  money.  In  such  an 
action,  it  is  generally,  if  not  always  important  to  ascertain,  as 
far  as  possible,  by  what  motives  the  wrong-doer  was  actuated; 
for,  n])on  the  character  of  those  motives,  the  amount  of  tiie 
damages  must  materially  depend.  If  the  attack  upon  the  per- 
son of  the  plaintiff"  be  cool  and  deliberate,  wanton  and  unpro- 


DECEMBER  TEKM,  1860.  193 


Bond  V.  Warren. 


voked,  tlie  jury  ^Yill  be  justified  in  assessing  very  high  dam- 
ages; wiiile  on  the  contrary,  if  the  defendant  commit  the  bat- 
tery under  the  influence  of  passion,  excited  by  an  actual  or 
supposed  injury  done,  or  insult  offered  to  liim  by  the  plain- 
tift\  the  damages  ought  to  be  comparatively  low.  Motive 
then,  being  an  essential  ingredient  in  tlie  offense,  is  certain- 
1}'  a  proper  subject  of  proof.  It  frequently  happens,  however, 
that  this  proof  cannot  be  made  by  any  direct  testimony,  and 
each  party  is  necessarily  driven  to  rely  upon  tlie  indirect  or 
presumptive  evidence,  arising  from  the  conduct  of  tlie  oppo- 
site party.  That  such  presumptions  are  allowable,  and  why 
they  arc  so,  is  very  well  explained  b}^  Mr.  Starkie  in  his  ex- 
cellent "  Practical  treatise  on  the  law  of  evidence,"  (see  1 
Stark.  Ev.  m.  p.  50  and.  51.)  He  says,  "Presumptions,  and 
strong  ones,  are  continually  raised  upon  knowledge  of  tlie  hu- 
man character,  and  of  the  motives,  passions  and  feelings,  by 
which  the  mind  is  usually  influenced.  Experience  and  obser- 
vation show  that  the  conduct  of  mankind  is  governed  by  gen- 
eral laws,  which  operate,  under  similar  circumstances,  with  al- 
most as  much  regularity  and  uniformity  as  the  mechanical  laws 
of  nature  themselves  do.  The  eftect  of  particular  motives  up- 
on human  conduct,  is  the  subject  of  every  man's  observation 
and  experience,  to  a  greater  or  less  extent,  and  in  proportion 
to  his  attention,  means  of  observation  and  acuteness,  every 
one  becomes  a  judge  of  the  human  character,  and  can  con- 
jecture on  the  one  hand,  what  would  be  the  effect  and  influ- 
ence of  motives  upon  any  individual  under  particular  circum- 
stances ;  and  on  the  other  hand,  is  able  to  presume  and  infer 
the  motives  by  which  an  agent  was  actuated,  from  the  partic- 
ular course  of  conduct  which  he  adopted.  Upon  this  ground 
it  is,  that  evidence  is  daily  adduced  in  courts  of  justice  of  the 
particular  motives  by  which  a  party  was  influenced,  in  order 
that  the  jury  may  infer  what  his  conduct  -vras,  under  those  cir- 
cumstances ;  and,  on  the  other,  juries  are  as  frequently  called 
upon  to  infer  what  a  man's  motives  and  intentions  have  been, 
from  his  conduct  and  his  acts.  All  this  is  done  because  every 
man  is  presumed  to  possess  a  knowledge  of  the  connection 

13 


194  m  THE  SUPKEME  COURT. 

Bond  V.  Warren. 

between  motives  and  conduct,  intention  and  acts,  which  he 
has  acquired  from  experience,  and  be  able  to  presume  and  in- 
fer the  one  from  the  other." 

The  direct  bearing  of  these  remarks  upon  the  case  now  be- 
fore us,  is  obvious.  The  defendant  being  upon  friendly  terms 
heretofore  with  the  plaintiff,  went  to  his  store  and  beat  him 
in  his  own  house,  in  the  presence  of  his  daughter.  What  mo- 
tive prompted  him  to  commit  so  lawless  and  violent  an  act  ? 
The  jury,  who  were  called  upon  to  decide  upon  the  questions 
connected  with  that  act,  had  a  right  to  infer  the  motive  from 
his  conduct,  which  being  j^^«ra  rei  gestae^  was  evidence  for 
him.  What  then  was  his  conduct  ?  The  witness  stated  that 
he  came  to  the  store  of  the  defendant,  and  walking  up  to  him 
said,  "  How  dare  you  send  a  letter  to  mj^  house."  What  mo- 
tive can  fairly  and  reasonably  be  inferred  fiom  such  conduct? 
but  that  a  letter  was  sent  by  the  plaintiff  to  the  defendant's 
house,  which  was,  or  which  the  defendant  supposed  to  be,  of- 
fensive in  its  terms.  It  is  impossible  to  suppose  that  a  sane 
man  would  have  acted  towards  one  with  whom  he  was  on 
friendly  terms,  as  the  defendant  did  towards  the  plaintiff,  un- 
less he,  in  some  way,  felt  himself  agrieved  by  the  act  of  the 
other.  If  such  an  inference,  then,  M^as  a  fair  and  reasonable 
one,  the  jury  had  a  right  to  draw  it,  and  his  Honor  erred  in 
instructing  them  otlierwise.  jN^or  was  that  error  cured  by  the 
failure  of  the  defendant  to  produce  the  letter,  and  offer  it  in 
evidence,  so  that  the  jury  might  see  the  contents  and  judge 
for  themselves,  v/hether  they  were  offensive  or  not.  It  did 
not  appear  that  the  defendant  had  the  letter  in  his  possession. 
He  may  have  refused  to  receive  it,  or  may  have  sent  it  back. 
But  even  if  he  had  the  possession  of  it,  his  non-production 
of  it  was  only  evidence  for  the  consideration  of  the  jury,  as 
to  the  character  of  its  contents,  but  did  not  justify  the  court 
in  withdrawing  from  the  jury  the  right  to  make  their  own 
inferences,  from  the  conduct  of  the  defendant.  His  Honor 
very  properly  said,  that  there  was  no  evidence  that  the  letter 
was  sent  or  directed  to  the  defendant's  daughter,  but  he  went 
too  far  in  instructing  the  jury  that  they  could  not  infer  that 


DECEMBER  TEEM,  1860.  195 

Sparrow  v.   Maynard. 

it  was  offensive  or  insulting  to  tlie  defendant  himself.  His 
conduct  showed  cleail}',  that  it  was  so,  or  that  he  thought  it 
was  so,  and  though  his  non-production  of  the  letter,  (supposing 
that  he  had  it)  may  have  weakened  the  testimou}",  it  did  not 
entirely  destroy  it. 

Per  Curiam,        Judgment  reversed,  and  a  venire  de  novo. 


THOMAS  G.  SPARROW  v.  ROBERT  C.  MAYNARD. 

In  a  declaration  for  slander^  in  charging  the  plaintiff  with  perjury  in  another 
State,  it  must  be  averred  that,  by  the  laws  of  such  other  State,  perjury  is 
an  offense  to  which  is  annexed  an  infamous  punishment 

Tins  was  an  action  for  slanderous  words,  spoken,  tried  be- 
fore Bailey,  J.,  at  the  Fall  Term,  1860,  of  Craven  Superior 
Court. 

The  words  complained  of,  are  elaborately  set  out  in  a  dec- 
laration, and  the  substance  of  them  is,  that  on  an  indictment 
in  a  criminal  court,  in  Baltimore  in  the  State  of  Maryland, 
against  one  Thomas  B.  James,  for  obtaining  goods  under  false 
pretences,  the  plaintiff,  who  appeared  as  a  witness  for  the  said 
James,  committed  willful  and  corrupt  perjury.  The  declara- 
tion, however,  no  where  averred  that,  by  the  laws  of  Mary- 
land, perjury  was,  or  now  is,  punishable  with  an  infamous 
punishment. 

Exception  was  taken,  on  the  trial,  to  this  defect  in  the  dec- 
laration, and  was  sustained  by  his  Ilontr,  who  nonsuited  the 
plaintiff,  from  which  he  appealed  to  this  Court. 

McBae,  for  the  plaintiff. 

HatoghUm  and  MiUer^  for  the  defendant. 


^m  I-N"  THE  SUPKEME  COURT. 

Sparrow  v.   Maynard. 

Manly,  J.  The  question  presented  for  our  consideration 
is,  whether  the  declaration  sets  out  matter  that,  in  law,  con- 
stitutes slander.  For  if  it  do  not,  according  to  the  case  of 
Broioji  V.  Dula,  3  Murph.  574,  the  plaintiff  was  properly 
nonsuited  in  the  Court  below. 

Words  actionable  ^<?/'  se,  that  is  say,  where  no  special  dam- 
age is  alleged,  must  impute  an  infamous  offense.  This  is  well 
settled  by  the  cases  of  /Skinner  v.  White,  1  Dev.  and  Bat,  471, 
and  Wall  v,  IIosTcins,  5  Ire.  177.  The  infamy  of  the  punish- 
ment seems  to  be  the  criterion  by  which  the  effect  of  word& 
to  degrade,  socially,  is  judged,  and  by  which  their  actionable 
character  is  determined. 

If  the  words  do  not,  of  themselves,  import  such  offense, 
they  must  be  helped  out  hy  the  averment  of  matter,  to  give 
them  their  proper  and  the  requisite  signification.^ 

Where  words  charge  an  act  committed  in  another  State, 
we  cannot  certainly  know  without  aid,  that  any  offense 
against  law  is  imputed.  That  depends  upon  the  law  of  the 
State,  of  which  we  do  not  take  judicial  cognizance.  It  is 
necessary,  therefore,  to  complete  information  as  to  the  cha- 
racter of  such  words,  that  it  should  be.averred,  and,  of  course, 
proved,  what  the  law  of  the  State  is,  where  the  act  is  located. 

This  principle,  with  regard  to  words  of  the  class,  we  are 
now  considering,  is  settled  by  the  cases  of  Shipp  v.  McCraio, 
3  Murph.  466,  and  Wall  v.  lioskins,  5  Ire.  177.  It  is  thus 
settled,  not  upon  the  gi-ound,  that  peril  to  the  plaintiff'  must  be 
shown,  as  an  ingredient  in  slander,  for  peril  is  not  necessary^ 
but  because  the  law,  where  no  special  damage  is  alleged,  ha& 
thought  proper  to  annex  social  loss  only  to  charges  of  that 
class.  Contumely  is  said  'to  be  the  gravamen  of  the  action, 
and  a  legal  inference  of  that  can  only  be  drawn  from  the  im- 
putation of  felonious  or  other  imfamous  offenses. 

We  do  not  wish  to  be  understood  as  saying,  that  the  infer- 
ence of  social  loss  will  be  drawn  in  this  State  from  every 
charge  of  an  offense  committed  in  another  State,  which,  by 
the  laws  of  that  State,  is  punished  infamously.    That  will  de- 


DECEMBER  TERM,  1860.  197 

Welch  V.  Trotter. 

|)end  upon  the  light  in  which  it  is  regarded  here.     But  upon 
that  discussion,  we  do  not  enter. 

We  are  of  opinion,  therefore,  that  in  a  declaration  for  slan- 
der, in  charging  the  plaintiff  with  perjury  in  the  State  of  Ma- 
ryland, it  must  be  averred,  that  by  the  laws  of  Maryland,  per- 
jury is  an  offense  to  which  is  annexed  an  infamous  punish- 
ment. What  it  ie  necessary  to  aver,  it  is  necessary,  accord- 
ing to  a  well  established  principle  of  pleading,  to  prove.  Al- 
legations without  proofs,  and  proofs  without  allegations,  are 
■equally  unavailing.     There  is  no  error, 

Pp:r  Cukiam,  Judgment  affirmed. 


Doe  on  the  demise  of  EDWARD  WELCH  et  al  v..  WILLIAM  TROTTER 

Where  an  Indian,  under  the  treaties  of  1817  and  1819,  after  having  his  re- 
servation xillotted  to  him,  voluntarily  abandoned  it  and  re-united  himself 
with  his  ti-ibe,  west  of  the  Mississippi,  it  was  held  that  his  children,  after 
his  deatli,  were  not  entitled  to  any  estate  in  such  reservation. 

A  treaty  in  its  ellect  ie  an  executory  agreement,  and  where  an  estate  was  lim- 
ited by  treaty^  to  one  for  life,  with  a  remainder  to  others,  on  a  condition 
extending  to  both  estates,  it  was  held  that  on  breach  of  such  condition, 
both  estates  were  defeated  without  entry. 

Action  of  ejectment,  tried  before  Heath,  J.,  at  tlie  Spring 
Term,  18G0,  of  Maeon  Superior  Court. 

The  lessors  of  the  plaintiff,  in  this  case,  are  the  children 
and  widow  of  John  Welch,  a  native  cherokee  Indian.  By 
the  8th  article  of  the  treaty  of  1817,  it  is  provided  that — 

'•■To  each  and  eve  r}'^  head  o^  any  Indian  family,  residing  on 
the  east  side  of  the  Mississippi  river,  on  the  lands  that  are 
uow,  or  may  hereafter  be  surrendered  to  the  United  States, 
■who  may  wish  to  become  citizens  of  the  United  States,  the 
United  States  -do  agree  to  give  a  reservation  of  six  hundred 


11^18  EST  THE  StJPEEME  COUET. 

Welch  V.   Trotter. 

and  forty  acres  of  land,  in  a  square,  to  include  their  improve- 
ments, which  are  to  be  as  near  the  centre  thereof  as  practica- 
ble, in  whicli  they  M-ill  have  a  life-estate,  \vith  a  reversion  in 
fee  simple  to  their  children,  reserving  to  the  widow  her  dow- 
er, the  register  of  whose  names  is  to  be  filed  in  the  oflice  of 
the  Cherokee  agent,  which  shall  be  kept  open  until  tlie  cen- 
sus is  taken  as  stipulated  in  the  third  article  of  this  treaty: 
Provided:  That  if  any  of  the  heads  of  families,  for  whom 
reservations  may  be  made  shall  remove  theref)'ou:i,  then,  in 
that  case,  the  right  to  revert  to  the  United  States." 

By  the  second  article  of  the  treaty  of  1819,  it  is  provided 
that — "The  United  States  agree  to  pay  according  to  the  stip- 
ulations contained  in  the  treaty  of  8th  of  July,  1817,  for  all 
improvements  on  land  lying  within  the  country  ceded  by  the 
Cherokees,  which  add  real  value  to  the  land,  andnlo  agree  to 
allow  a  reversion  of  610  acres  to  each  head  of  any  Indian  family 
residing  within  the  ceded  territory,  (those  enrolled  for  the 
Arkansas  excepted)  who  choose  to  become  citizens  of  the 
United  StfLtes  in  the  manner  stipulated  in  the  said  treaty." 

Welch  made  application  for  a  reservation,  having  had  his 
name  registered  for  that  purpose,  and*  accordingly,  the  land 
in  question,  on  which  he  was  residing  with  his  fannly  at  the 
date  of  the  treaties,  v»'as  duly  surveyed  and  laid  off  to  him  as 
a  reservation.  He  continued  to  reside  on  the  premises  until 
February,  1822,  when  lie  voluntarily  delivered  them  to  one 
Benjamin  S.  Brittain,  and  removed  to  the  Cherokee  nation, 
beyond  the  Mississippi.  He,  subsequently,  claimed  and  re- 
ceived compensation  under  the  treaty  of  1835,  for  his  improve- 
ments on  the  land  in  question,  and  claimed  and  received  his 
share  oi  \.hQ  per  capita  and  removal  fund,  secured  to  the  Cher- 
okees, under  the  treaty. 

The  full  particulars  of  the  defendant's  title  are  set  out  in 
the  case  agreed,  but  as  the  whole  case  turns  upon  the  want  of 
title  in  the  lessors  of  the  plaintiflt",  it  is  not  deemed  important 
to  report  them. 

These  facts  were  agreed  upon  by  the  counsel  of  the  parties,, 
and  submitted  for  the  judgment  of  the  Court,  who,  pro  forma^ 


DECEMBER  TERM,  1860.  199 

Welch  V.  Trotter. 

decided  in  favor  of  the  plaintiff,  from  which  the  defendant 
appealed. 

This  cansc  was  argued  by  Gaither  for  the  plaintiff,  and 
iV^.  W.  Woodjin,  for  the  defendant,  at  Morganton,  and  npon 
an  advisari  and  removal  to  this  Court,  was  again  argued  by 

Philli])s^  for  the  defendant. 

No  counsel  appearing  here  for  the  plaintiff. 

Pearson,  C.  J.  The  case  depends  upon  the  construction 
of  the  treaties  of  1817  and  1819,  between  the  United  States 
and  the  Ciierokee  Indians, 

By  the  Stli  article  of  the  treaty  of  1817,  it  is  stipulated  that 
"  to  each  and  every  head  of  any  Indian  family,  residing  on 
the  east  side  of  the  Mississippi  river,  on  lands  that  now  are, 
or  may  hereafter  be  surrendered  to  the  United  States,  who 
may  wish  to  become  citizens  of  the  United  States,  the  United 
States  do  agree  to  give  a  reservation  of  010  acres  of  land  to 
be  surveyed,  &c.,"  "  in  which  they  shall  have  a  life-estate, 
with  a  reversion  in  fee  simple  to  their  children,  reserving 
'to  the  widow  her  right  of  dower,  and  the  register  of  whose 
names  is  to  be  filed  in  the  office  of  the  Cherokee  agent,  which 
shall  be  kept  open,  <fec.,  provided,  that  if  any  of  the  heads  of 
families,  for  whom  reservations  may  be  made,  shall  remove 
therefrom,  then,  in  that  case,  the  right  to  revert  to  the  Uni- 
ted States." 

The  second  article  of  the  treaty  of  1819,  merely  reiterates 
and  confirms  the  right  in  the  manner  stipulated  in  the  previ- 
ous treaty. 

Prior  to  these  treaties  the  Cherokee  Indians  lived  on,  and 
were  in  possession  of  a  large  body  of  land,  of  which  the  tract 
in  controversy  was  parcel,  within  the  limits  of  this  State,  but 
it  was  conceded  that  the  title  to  the  land  was  in  the  State, 
subject  to  a  right  of  occupancy  on  the  part  of  the  Indians. 
That  is,  the  ultimate  title  was  in  the  State,  and  the  Indians 
had  only  a  "  base  or  qualified  fee"  so  long  as  they  should  con- 
tinue to  occupy  the  land. 

Tlie  object  of  the  treaty  was  to  extinguish  the  Indian  title 


200  IN  THE  SUPREME  COURT. 


Welch  V.  Trotter. 


for  the  benefit  of  the  State,  bj  inducing  the  Indians  to  re- 
move ;  and,  in  order  to  meet  objections,  which  were  made 
agaiHst  entering  into  the  treaty,  by  some  individuals  of  the 
tribe,  it  w^as  agreed  that  any  "  head  of  a  family,"  who  did  not 
wish  to  remove,  but  desired  to  live  where  he  was,  should  have 
a  tract  of  640  acres  allotted  to  him  in  severalty,  in  lieu  of  the 
share  of  the  whole,  to  which  he  was  entitled  in  common  with 
other  members  of  the  tribe. 

It  was  foreseen,  that  the  effect  of  an  allotment  or  reserva- 
tion (as  it  was  termed)  to  a  particular  Indian,  would  simply 
be  to  give  him  a  parcel  in  severalty  in  the  same  form,  plight, 
and  condition,  in  which  he  was  before  entitled  to,  the  whole 
in  common  as  a  member  of  the  tribe,  that  is,  that  he  would 
have  a  right  of  occupancy,  or-a  base  or  qualified  fee.  This 
was  objected  to  on  the  part  of  the  Indians,  who  desired  that 
the  reservation  should  confer  an  absolute  estate  in  fee  simple. 
This  demand  could  not  be  yielded  to,  on  the  part  of  the  Uni- 
ted States,  because,  among  other  reasons,  it  would  give  to  the 
Indians  taking  a  reservation,  a  right  to  alien,  and  it  was  ap- 
prehended that  a  great  many  Indians  would  be  thus  induced 
to  take  reservations  and  afterwards  sell,  and  then  remove  and 
become  re-united  to  their  tribe — a  mode  of  proceeding  which 
would  greatly  prejudice  the  rights  of  the  State  of  IS'orth  Car- 
olina, by  taking  from  her  the  benefit  of  selling  the  land,  and 
conferring  it  on  the  Indians.  A  compromise  was  then  elfect- 
ed,  by  which  it  was  agreed  that  in  case  any  Indian,  taking  a 
reservation,  should  live  on  the  land  during  his  life-tiuje,  his 
children  should  have  an  estate  in  fee  simple  and  his  wife 
dower,  but  if  the  Indian  should  remove  from  the  land,  the  re- 
servation should  be  void  and  of  no  eflfect.  In  this  way,  it  was 
supposed  that  a  fraudulent  abuse  of  the  right  to  have  reser- 
vations, was  sufliciently  guarded  against.  This  explains  what, 
at  first,  seems  singular,  that  the  estate  is  divided,  and  a  life- 
estate  is  given  to  the  head  of  the  family,  and  a  remainder  is 
given  to  his  children  in  fee  simple.  Whether  this  stipulation 
to  give  the  children  an  absolute  fee  simple  was  valid  in  re- 
spect to  the  State  of  North  Carolina,  or  whether,  having  ta- 


DECEMBER  TERM,  1860.    i  20^ 

Welch  V.  Trotter. 

ken  benefit  under  the  main  provisions  of  tlie  treaty,  she  was 
not  bound  by  all  its  provisions,  is  a  question,  into  which  we 
will  not  enter,  bulfcwill  assume,  for  the  purposes  of  this  case, 
that  the  stipulation  was  valid.  It  M-as  certainly  reasonable  to 
impose  this  condition,  in  order  to  prove  that  the  reservation 
was  taken  hona  fide  by  the  head  of  the  family,  and  give  some 
assui-ance  that  his  children  would  remain  on  it.  They  had  no 
ground  to  comjjlain,  for,  as  the  reservation  was  acquired  by 
the  mere  act  of  the  head  of  tiie  family,  it  was  for  him  to  stip- 
ulate u]K)n  what  terms  he  would  take  it,  and,  in  trutli,  the 
stipulation,  that  in  case  he  conqilied  with  the  coTidition,  his 
children  should  have  a  fee  simi)le  absolute,  was  a  gratuitous 
concession  to  them. 

The  statement  made  above,  in  reference  to  the  condition  of 
things  at  the  date  of  the  treaty — the  relation  of  the  parties, 
and  the  purposes  for  which  the  treaty  was  made,  taken  in 
connection  with  the  words  used  in  the  clause  now  under  con- 
sideration, make  it  manifest  that  it  was  the  intention  oidy  to 
allow  the  children  of  such  of  the  Indians,  who  took  reserva- 
tions, as  continued  to  live  on  the  land  during  their  lives,  to 
have  estates  in  the  land.  In  the  construction  of  treaties,  the 
intention  of  the  parties  is  the  governing  principle,  and  the 
courts  will  not  permit  it  to  be  defeated,  because  of  an  omis- 
sion to  insert  technical  words,  or  of  an  improper  use  of  them. 
If,  by  the  operation  of  any  rule  of  law,  the  "  little  savages," 
who  may  happen  to  be  the  children  of  an  Indian,  who,  after 
having  his  reservation  allotted  to  him,  voluntarily  abandoned 
it  and  re-united  himself  to  his  tribe,  are  entitled  to  the  land 
after  his  death,  the  result  will  do  violence  to  the  ])lain  inten- 
tion of  the  conti'acting  parties,  and  must  be  attributed,  cither 
to  a  want  of  foresight,  or  of  intelligence  on  the  part  of  the 
commissioners  who  made  the  treaty,  or  their  inability  to  use 
words  proper  to  express  the  meaning  of  the  parties. 

1.  It  is  insisted  for  the  plaintiff,  that  the  children  of  John 
Welch  do  not  claim  under  him  by  descent^  but  claim  as  _/;wr- 
cJuisers^  by  force  of  the  remainder,  which  is  limited  to  them 
in  fee  simple,  according  to  the  provisions  of  the  treaties ;  and 


202  m  THE  SUPEEME  COURT. 


Welch  V.  Trotter. 


it  is  a  well-settled  rule  of  law,  "  where  a  remainder  is  limited, 
a  condition  annexed  to  the  particular  estate  is  void,  for  it  is 
unreasonable  that  the  grantor,  by  entry  togdefeat  the  partic- 
ular estate,  sliould  defeat  the  estate  in  remainder,  which  he 
had  absolutely  granted  away."  Fearne  on  Remainders,  271. 
The  rule  of  law  is  admitted,  but  it  has  no  application  to  our 
case ;  for  the  condition  is  not  annexed  to  the  life-estate  only, 
but  is  also  annexed  to  the  estate  in  remainder:  "provided, 
that  if  any  of  the  heads  of  families,  for  whom  reservations 
may  be  made,  should  remove  therefrom,  then,  in  that  case, 
the  right  to  revert  to  the  United  States."  What  right  ?  The 
right  to  the  land,  which,  of  course,  includes  the  estate  in 
remainder  as  well  as  the  estate  for  life.  So,  the  condi- 
tion is  annexed  to  the  whole  estate,  and  authority  need  not 
be  cited  to  show,  that  if  the  condition  is  annexed  to  the  whole 
estate,  it  makes  no  difference  in  respect  to  the  eificacy  of  the 
condition  to  defeat  it,  whether  the  whole  is  granted  to  one 
person,  or  the  estate  is  divided  and  a  part  is  given  to  one,  and 
the  remainder  to  another  person.  The  life-estate,  in  the  case 
under  consideration,  was  obviousl}^  a  matter  of  minor  impor- 
tance, and  the  idea  that  the  purpose  of  the  condition  was  to 
defeat  that  estate  only,  and  leave  the  remainder  in  fee  simple, 
to  take  full  force  and  effect,  leads  to  an  absurdity. 

2.  It  was  insisted  for  the  plaintiff:  admit  that  the  condition 
applies  as  well  to  the  remainder  as  to  the  life-estate,  it  is  a 
well-settled  rule  of  law,  "  when  a  freehold  estate  vests,  it  can 
only  be  defeated  by  force  of  a  condition,  by  the  entry  of  the 
grantor,  or  some  act  equivalent  to  entry."  It  is  a  principle 
that  "  an  estate  that  begins  by  livery,  can  only  be  defeated 
by  entry ;"  Co.  Lit.  218  ;  Broionimj  v.  Beston,  1  Plow.  Rep. 
131 ;  Doe  v.  PritcJuird,  5  B.  and  Ad.  765,  and  it  is  contend- 
ed tliat  the  estate  which  vested  in  the  children  of  John  Welch, 
by  the  limitation  of  the  remainder,  has  never  been  divested  by 
entry,  or  any  equivalent  act.  This  rule  of  law  is  also  admit- 
ted, and  it  is  likewise  conceded  that  had  the  treaty  contained 
a  provision,  that  it  should  be  carried  into  effect  hy  a  grant,  to 
such  Indians  as  took  reservations  for  life,  with  remainder  to 


DECEMBER  TERM,  1860.  203 

Welch  V.  Trotter. 

their  children  and  their  heirs,  and  a  grant  to  that  etiect,  had 
accordingly  been  issned  by  the  State  of  Xorth  Carolina,  with 
the  condition  annexed  to  the  whole  estate,  the  remainder  in 
fee  simple  having  thereby  vested  in  the  children,  would  not 
have  been  divested  by  any  act  that  has  been  done,  notwith- 
standing the  breach  of  the  condition. 

But  no  such  grant  was  required  by  the  treaty  to  be  issned, 
and  no  such  grant  has,  in  fact,  been  issued.  The  rights  of  the 
children  depend  merely  on  the  stipulations  of  the  treaty. — 
Their  estate  was  never  executed,  but  remains  and  depends  on 
an  executory  contract.  So,  all  the  learning  in  respect  to  what 
is  necessary  to  be  done,  in  oi'der  to  defeat  a  freehold  estate, 
which  has  been  created  by  feudal  investiture,  or  by  the  grant 
of  the  sovereign,  or  by  the  feofment  and  livery  of  an  individ- 
ual, or  any  conveyance  having  the  like  effect,  has  no  appli- 
cation, and  the  authorities,  which  were  cited,  operate  against 
the  plaintiff,  because  they  show  that  in  matters  of  contract 
executory,  in  respect  to  chattels  personal,  and  likewise  chat- 
tels real,  (see  notes  to  Z?ww?^;or\s'case,  1  Smith's  Leading  cases, 
15,)  a  condition  that  the  contract,  or  a  conveyance  of  a  chat- 
tel, or  a  lease  for  years,  shall  be  void,  has,  in  law,  the  effect 
of  making  the  contract,  conveyance,  or  lease  for  years,  void 
ij)So  factu,  on  h\'c^Q\\  oi  the  condition.  All  the  learning  in 
respect  to  conditional  limitations,  rests  on  the  principle,  that 
a  use  may  be  defeated  by  breach  of  condition   without  entry. 

Our  case,  then,  is  narrowed  to  this:  the  United  States  stip- 
ulates and  agrees  that,  provided  the  head  of  an  Indian  family, 
who  has  taken  a  reservation,  continues  to  live  thereon,  he 
shall  have  a  life-estate,  and  his  children  shall  have  the  rever- 
sion (meaning  the  remainder)  in  fee  sim})le,  and  the  Indian 
stipulates  and  agrees,  that  in  case  he  i-omoves  therefrom,  the 
reservation  shall  be  void  and  of  no  effect.  A  treaty,  in  its 
legal  effect,  is  an  executory  agreement.  It  is  clear,  there- 
fore, the  act  of  voluntary  removal  operated  ijyso  facto,  to 
defeat  the  whole  reservation. 

The  fallacy  of  the  argument,  upon  -which  the  claim  of  the 
plaintiff"  is  put,  arises  from  a  failure  to  distinguish  the  case  of 


304  IN  THE  SUPKEME  COUKT. 

^ — — . — — __ — ^ 

Oliipley  V.  Albea. 

a  remainder,  created  by  an  executed  conveyance,  suck  as  a 
grant  or  feoi'ment,  and  the  case  of  an  interest  in  remainder, 
which  rests  on  mere  treaty  stipulations  or  an  executory  agree- 
ment, (which  is  our  case)  where  the  rules  of  law  are  not  so 
rigid,  and  greater  latitude  is  allowed,  in  order  to  effectuate 
the  intention  of  the  contracting  parties.  The  well-established 
distinction  between  an  executed  and  an  executory  trust,  i.  e., 
one  resting  on  articles,  furnishes  an  analogy,  and  an  apt  illus- 
tration. 

The  opinions  of  Attorney  General,  Legare,  and  of  Attorne}' 
General,  Clifford,  vol.  4.  Opinions  of  Attorneys  General,  at 
page  ISO  and  619,  will  be  found  to  sustain  our  conclusion,  and 
also  the  case  oi  Kennedy  v.  McCartneij^  IJ:  Ala.  Rep.  142. 

It  lias  been  considered  unnecessary  to  discuss  the  count  on 
the  demise  of  the  M'idow,  as  her  title  rests  on  the  same  ques- 
tions, and  is  further  complicated  by  the  fact,  that  a  widow  has 
no  estate  until  dower  is  assigned  to  her. 

Judgment  in  the  Court  below  is  reversed,  and  judgment  Oii 
nonsuit  on  the  case  agreed, 

Pek  Curiam,  Judgment  reversed. 


The  Stale  to  the  use  of  G.  W.  CHIPLEY  v.  JAMES  M.  ALBEA  et  al 

Where  a  debtor  delivered  to  his  creditor,  without  endorsement,  a  bond  on  a 
third  person  as  collateral  security,  with  an  agreement,  that  it  should  be  re- 
turned if  not  collected,  and  the  creditor  took  from  a  constable  a  receipt  for 
the  paper  for  collection,  as  being  received  from  him,  (the  creditor)  it  was 
held  in  a  suit  against  the  constable,  on  his  official  bond,  for  failing  to  col- 
lect, that  the  creditor  was  the  proper  person  to  declare  as  relator. 

Action  of  debt  on  a  constable's  bond,  tried  before  Dick,  J., 
at  the  last  Fall  Term  of  Iredell  Superior  Court. 

The  breach  of  the  bond  alleged,  was  the  non-collection  of  a 


DECEMBER  TERM,  1860.  205 


Chipley  v.  Albea. 


debt  off  of  one  Lazenby.  The  suit  M'as  brought  on  the  rela- 
tion of  G.  W.  Chiple}^,  and  the  facts  were,  that  one  Wilson 
owed  Chiplej  a  debt,  and  gave  him,  without  endorsement,  a 
bond,  payable  to  him  by  Lazenby,  for  a  balance  of  $55,  a& 
eollateral  security,  with  an  understanding  that  if  he,  Chipley, 
could  not  collect  it,  he  was  to  return  it  to  Wilson.  Chipley 
gave  the  note  to  the  defendant,  Albea,  and  took  from  him  the 
following  receipt:  "Received  of  G.  W.  Chipley  one  note  on 
James  S.  Lazenby  for  eighty  dollars,  drawn  six  months  after 
date,  with  interest  from  date,  and  due  2l8t  April,  1858,  with 
a  credit  on  the  17th  February,  1859,  of  twenty-five  dollars, 
which  I  am  to  collect  or  return  as  an  oHicer.  February  21st,. 
1859."  At  the  same  time,  he  gave  the  constable  a  warrant 
filled  up  in  the  name  of  Wilson,  to  the  use  of  Chipley,  on 
which  judgment  was  taken.  There  was  no  question  as  to  the 
oflicer's  negligence  in  failing  to  collect  the  money,  but  the 
defendant's  counsel  took  the  groundi,  that  Chipley  was  but 
the  agent  of  Wilson,  and  that  the  latter  should  have  been  the 
relator.  Of  tin's  opinion  was  his  Honor,  and  in  deference 
thereto  the  plaintiff'  took  a  nonsuit  and  appealed. 

MHcheU,  for  the  plaintiff. 
TF.  P.  Caldwell,  for  the  defendant. 

Peaksom,  C.  J.  This  Court  is  of  opinion  that  the  action 
can  be  maintained  on  the  relation  of  Chipley,  for  tM-o  reasons. 

1.  The  contract  to  collect  the  debt  was  made  with  Chipley, 
The  receipt  is  evidence  of  this  fact.  The  note  was  received 
from  him,  and  the  undertaking  to  collect,  on  the  part  of  Al- 
bea, was  made  with  him. 

2.  The  beneficial  interest,  in  the  debt,  vested  in  Chipley,  by 
the  dealing  between  him  and  Wilson.  lie  received  the  note 
as  collateral  security,  and  was  entitled  to  whatever  sum  could 
befrealized  out  of  it.  Had  the  officer,  by  the  exercise  of  pro- 
per diligence,  collected  the  money,  Chipley  had  a  right  to 
receive  it,  and  it  became  his  money.  So,  as  a  matter  of 
course,  the  negligence  of  the  officer  aff'ected  his  interest,  and 


206  IN  THE  SUPKEME  COURT. 

Lash  V.  Arnold. 

he  was  the  "party  grieved."  The  circumstance,  that  he  had 
the  right  to  fall  back  on  Wilson,  in  the  event  that  the  mo- 
ney was  not  collected,  does  not  vary  the  question,  because  he 
had  a  right  to  receive  the  money,  in  the  first  instance,  for  his 
own  'use,  and  cannot  be  treated  merely  as  an  agent  of  Wilson. 
There  is  error.      Venire  dc  novo. 

Pee  Cueiam,  Judgment  reversed. 


LASH  AND  MOORE  v.   ANDERSON   ARNOLD,  d  al 

A  judgment,  in  favor  of  "L.  &  M.,"  trading  as  a  firm,  is  valid,  and  is  compe- 
tent evidence  in  a  suit  brought  by  the  constituents  of  such  firm,  in  their 
individual  names  set  out  intull. 

(The  case  of  Wall  v.  Jarrott,  3  Ired.  Rep.,  cited  and  approved,  and  CoJioon  v. 
Morton,  4  Jones'  Rep.  250,  overruled.) 

This  was  an  action  of  debt,  tried  before  Saunders,  J.,  at  the 
last  Fall  Term  of  Stokes  Superior  Court. 

The  plaintiff  declared  against  the  defendants,  as  the  sure- 
ties of  one  Matthew  Mabe,  on  his  bond,  given  as  the  admin- 
istrator of  one  Abner  Mabe,  and  the  breach  assigned,  was  the 
non-payment  of  two  judgments,  which  the  relators  had  recov- 
ered against  the  administrator  Matthew.  The  judgments 
were  produced  in  evidence,  and  appeared  to  be  in  the  name 
of  "  Lash  &  Moore,"  on  warrants  in  favor  of"  Lash  &  Moore," 
against  the  administrator.  The  plaintifls  in  these  warrants 
were  William  A.  Lash  and  Edward  11.  Moore,  trading  under 
the  name  and  style  of  Lash  and  Moore,  and  this  suit  is  brought 
in  their  names,  set  out  in  full  as  trading.under  that  commer- 
cial style.  These  judgments  were  objected  to  as  evidence. — 
1st.  Upon  the  ground  that  they  were  null  and  void.  2ndly. 
Because  they  were  no  evidence  in  a  suit  brought  by  William 
Lash  and  Edward  H,  Moore.    The  evidence  was  admitted,  and 


DECEMBER  TERM,  1860.  207 

Lash  V.  Arnold. 

the  defendants  excepted.     Verdict  and   Judgment   for   the 
plaintiffs.     Appeal  by  the  defendants. 

Fowle^  for  the  plaintiffs. 
Morehead,  for  the  defendants. 

Battle,  J.  We  concur  with  liis  Honor,  upon  both  the 
points  made  by  the  defendants,  in  the  Court  below.  The 
judgments  obtained  by  the  plaintiffs,  before  a  single  magis- 
trate in  tlie  name  of  "Lash  and  JMoore,"  were  by  no  means 
nulleties,  as  is  clearly  siiown  by  the  case  of  Wall  v.  Jarrott^ 
3  Ired.  Rep.  -12.  "When  the  M'arraiit  was  served  upon  tiie  de- 
fendant in  those  judgments,  he  might  have  availed  himself 
by  a  plea  in  abatement,  or  by  an  exception  in  the  nature  of  a 
plea  in  abatement,  of  the  defect  in  the  M^arrant — tluit  it  was 
not  brought  in  the  proper  names  of  the  phiintiffs ;  but  not 
having  done  so,  the  imperfection  was,cured  after  judgment  by 
our  statute  of  amendments  ;  see  Revised  Code,  ch.  3,  sec.  5. 

The  second  objection  is  equally  untenable.  If  the  plain- 
tiffs had  brought  suit  on  the  judgments,  the}'  would  have  been 
at  libert}'  to  set  forth,  in  their  declaration,  their  true  names  of 
William  A.  Lash  and  Edward  IL  Moore,  trading  under  the 
name  and  style  of  Lash  k,  Moore,  and  in  support  of  that  dec- 
laration, might  have  given,  in  evidence,  the  judgments  in  favor 
of  Lash  and  ]\[oore.  Such  would,  undoubtedly,  have  been  the 
case  in  an  action  of  debt  on  a  bond  made  payable  to  Lash  & 
Moore,  and  we  cannot  perceive  any  difference  between  sucii 
•an  action,  and  ojie  upon  a  judgment,  obtained  in  the  name  of 
Lash  tV:  Moore.     See   Wall  v.  Jarrott^  ubi  supra. 

Our  attention  has  been  called  to  the  case  of  Cohoon  v.  Mor- 
ton,  4  Jones'  25G,  in  which  the  Court  refused  to  permit  the 
plaintiffs,  P.  A.  R.  Cohoon  and  R.  IL  Mcintosh,  partners  in 
trade,  trading  under  the  firm  and  style  of  "  Cohoon  &  Mcin- 
tosh," to  take  judgment  upon  a  bond,  given,  for  his  appear- 
ance, by  an  insolvent  debtor,  and  made  payable  to  "  Cohoon 
*fe  Mcintosh." 

We  are  free  to  confess  that  the  case  is  in  direct  opposition 


I 


208  IN  THE  SUPREME  COURT. 

m 

State  V.  Brannen.  * 

to  the  previous  one,  to  which  we  have  alluded,  of  Wall  v. 
Jarrott,  and  we  think  that,  upon  principle,  it  cannot  be  sup- 
ported. In  the  argument  of  it.  Wall  v.  Jarrott  was  not  re- 
ferred to  by  the  counsel  for  the  plaintiffs,  and  we  were  led 
into  a  mistake  by  not  adverting  to  the  rule,  which  allows  the 
plaintiffs,  in  such  cases,  to  aver  and  prove  that  they  are  the 
same  persons,  who,  as  partners,  are  known  and  called  by  the 
name  of  the  firm.  There  being  no  error,  the  judgment  is 
affirmed.  i 

Pek  Cckiam,  Judgment  affirmed. 


STATE  V.  JOHN  BRANNEN  d  al. 


Only  those  who  bet,  and  those  who  play  at  a  game  of  cards  where  there  is 
betting,  at  some  of  the  prohibited  places,  are  liable  to  be  indicted  under 
the  statute,  chap.  34,  sec.  75,  Rev.  Code. 

Where  a  court  refuses  to  quash  a  defective  indictment,  upon  the  ground,  that 
they  deem  it  sufficient,  an  appeal  will  lie,,  and  the  judgment  Avill  be  revers- 
ed and  the  cause  sent  back,  that  the  Court  may  proceed  with  the  motion- 
according  to  its  discretion. 

Tins  was  a  motion  to  quash  an  indictment  against  the  de- 
fendants for  playing  at  a  game  of  cards,  made  before  Saun- 
DEiis,  J.,  at  the  Fall  Term,  1860,  of  Guilford  Superior  Court.  ^ 

The  indictment  charged  that  the  defendants,  at  a  house  of 
entertainment,  in  the  town  of  Greensboro',  Guilford  county, 
kept  by  one  Albright,  "  unlawfully  did  play  at  a  game  of 
cards,"  without  charging  that  they  betted  against  each  other 
for  any  thing,  or  that  any  one  present  betted  on  them,  or 
either  of  them.  A  motion  was  made  in  the  county  court, 
where  the  proceeding  originated,  to  quash  the  indictment  on 
account  of  this  defect,  but  the  motion  was  disallowed,  and  the 
defendants  appealed  to  the  Superior  Court.    A  motion  was 


DECEMBER  TERM,  1860.  209 

State  V.  Brannen. 

made  in  the  Superior  Coui-t  to  quash  the  bill,  upon  the  ground, 
tiiat  it  did  not  charge  any  criminal  offense,  but  the  Coui-theld 
that  the  indictment  was  sutticient,  and  refused  on  that  ground 
to  quash.  From  this  ruling,  defendants  appealed  to  this 
Court. 

Attorney  General^  with  whom  was  Scott^  for  the  State. 
McLean^  for  the  defendants. 

Mamly,  J.  AVe  think  the  judgment  of  the  Court  below,  in 
respect  to  the  sufficiency  of  the  indictment,  is  erroneous. 
Both  counts,  in  the  bill,  charge  a  playing  only  in  the  forbid- 
den places,  without  betting  either  by  the  players  or  by  any 
others,  on  the  game,  and  the  question  presented  is,  whether  a 
game  of  cards,  of  itself,  that  is  to  say,  in  which  there  is  no 
money,  property',  or  other  thing  of  value  bet,  is  forbidden  by 
the  Code,  chapter  34,  section  75.  The  section  is  as  follows  : 
"If  any  person  shall  bet  money,  property,  or  other  thing  of 
value,  whether  the  same  be  in  stake  or  not,  at  any  game  of 
cards,  which  shall  be  played  in  anj'  ordinary  or  house  of  en- 
tertainment, or  in  any  house  where  spirituous  liquors  are  re- 
tailed, or  in  any  part  of  the  premises  occupied  with  such  ordina- 
ry, tavern,  house  of  entertainment,  or  house  wherein  spirituous 
liquors  are  sold,  as  aforesaid,  or  shall  play  at  such  game  of 
cards,  the  person  so  offending  shall  be  deemed,  etc."  The 
•{ueslion  turns  upon  the  construction  of  the  latter  })art  of  the 
section,  viz  :  "  or  shall  play  at  any  such  game  of  cards." 
•  We  are  clearly  of  opinion,  that  the  adjective  "such,"  de- 
lines  a  class  of  games  of  cards,  and  limits  the  purview  of  the 
clause  to  games  in  the  forbidden  places  at  which  there  should 
be  bets.  It'  this  effect  bo  not  given  to  the  word,  it  must  be 
stripped  of  all  meaning ;  for  there  is  no  more  reason  for  re- 
ferring its  qualifying  import  to  the  bets,  than  to  the  localities, 
and  if  it  be  referable  to  neither,  there  is  no  limitation  to  the 
l)hrase  "  game  of  cards  ;"  all  are  alike  forbidden — the  game 
in  a  private  dwelling,  in  which  nothing  is  hazarded  but  the 
reputation  for  skill  of  the  players,  as  well  as  a  game  in  a  grog- 

14 


mo  IN  THE  SUPREME  COURT. 

State  V.  Brannen. 

shop,  in  which  the  unhappy  victims  of  drink,  will  often  stake 
their  all  upon  the  turn  of  a  card.  The  clause  has  never  been 
supposed  to  have  such  an  operation. 

Mr.  Webster,  in  his  dictionary,  has  defined  the  word  "such" 
to  mean : 

1.  "  Of  the  like  kind." 

2.  "  The  same  that."      . 

3.  "  The  same  as  what  has  been  mentioned." 

4.  "  Referring  to  what  has  been  specified." 

If  we  take  any  of  these  definitions,  the  view  which  has  been 
here  taken  of  its  meaning  and  operation,  in  the  portion  of 
the  Code  in  question,  is  strongly  corroborated. 

It  will  be  seen  by  i-eference  to  the  law,  as  it  stood  prior  to 
1856,  Revised  Statute,  chap.  34,  sec.  69,  expounded  by  the 
case  of  State  v.  Smithei'man^  1  Ire.  14,  that  ^jetting  was  the 
offense  prohibited  by  the  law.  It  nuide  no  difterence  that 
the  accused  did  not  play  ;  if  he  betted,  he  was  guilty  of  the 
law,  and  on  the  other  hand,  however  actively  he  might  par- 
ticipate in  the  game,  if  he  did  not  bet,  he  would  not  be  guil- 
ty. This  was  felt  to  be  a  defect  in  the  statute,  and  hence,  as 
we  suppose,  the  change  of  phraseology  in  the  Code — the  pur- 
pose being  to  subject  the  players  at  a  game  where  others  are 
betting,  as  well  as  the  betters,  to  the  penalty  of  indictment. 

We  hold,  therefore,  that  only  those  who  bet  and  those  who 
play  at  a  game  of  cards  where  there  is  betting,  in  some  of  the 
prohibited  places,  mentioned,  are  amenable  to  indictment, 
under  the  law  as  it  now  stands.  The  indictment,  therefore, 
manifestly  charges  no  offense  against  the  law. 

But  the  question,  as  to  the  sufiiciency  of  the  indictment, 
arose  in  the  Court  below,  upon  a  motion  to  quash,  and  we  are 
thus  brought  to  the  enquiry,  whether,  as  it  is  a  discretionary 
power,  we  can  reverse  it  in  tliis  Court.  The  rule  is  well  set- 
tled, that  where  the  Coui-t  below,  in  the  exercise  of  its  discre- 
tion^ ?i<^]\^^gQ^  a  matter,  that  this  Court  Avill  not  interfere; 
but  where  the  judgment  is  not  put  upon  that  ground,  but  up- 
on a  want  of  power,  it  is  otherwise  ;  Freeman  v.  Morris^ 
Busb.  287  ;  Stephenson  v.  Stephenson^  4  Jones,  472.     A  mo- 


DECEMBER  TERM,  1860.  211 

Odom   V.   Bryan. 

tion  to  quash  is  not  usually  resorted  to,  or  sustained  by  the 
Court,  except  in  cases  where  the  defects  are  gross  and  the  of- 
fenses of  minor  grade  ;  but  the  accused  will  be  left  to  his  de- 
murrer, motion  in  arrest  of  judgment,  or  writ  of  error,  accord- 
ing to  the  regular  mode  of  proceeding.  It  is  not  necessary 
for  us  to  say,  how  the  motion,  viewing  it  as  a  matter  of  dis- 
cretion, should  have  been  disposed  of,  but  where  the  Court 
below  adjudges  the  indictment  to  be  sufficient,  and,  therefore^ 
refuses  the  motion,  that  is  to  saj^,  refuses  it  for  a  defect  of 
power,  it  is  an  error  that  may  be  reversed  in  this  Court. 

Wherefoi-e,  let  the  judgment  be  reversed,  and  this  opinion 
certitied  to  the  Superior  Court,  to  the  end,  that  it  may  pro- 
ceed with  the  motion  according  to  its  discretion. 

Per  CuiiiAisi,  Judgment  reversed. 


JEREMIAH  ODOM  v.  WILLIAM  BRYAN. 

Where  a  slave  was  hired,  by  parol,  for  a  sum  certain,  and  before  the  expiration 
of  the  term,  the  owner  took  the  slave  out  of  the  hirer's  possession  against 
his  will,  and  the  hirer  brought  an  action  of  trover  against  the  owner,  and  re- 
covered and  received  the  value  of  the  slave's  services  for  the  unexpired  part 
of  the  term,  it  was  held  in  an  action,  brought  by  the  owner  against  the  hirer, 
to  recover  the  price  stipulated,  that  the  hirer,  having  got  the  full  benefit  of 
the  contract,  could  not  treat  it  as  rescinded,  and  thereby  avoid  his  obliga- 
tion under  it. 

This  was  an  action  of  assumpsit,  tried  before  Heath,  J.,  at 
Fall  Term,  1860,  of  Edgecombe  Superior  Court,  and  was 
brought  to  recover  for  the  hire  of  a  certain  slave,  Dave,  from 
November  5th,  1857,  to  January  1st,  1859. 

The  defendant,  as  plaintiff  alledgcd,  was  to  pay  for  such 
hire,  the  sum  of  §100,  on  January  1st,  1858,  and  $187.50,  on 
January  Ist,  1859.  The  plaintiff  showed  in  evidence  that  he  was 


212  IN  THE  SUPKEME  COURT. 

Odom   V.    Bryan. 

the  general  owner  of  slave  Dave,  prior  to  the  alleged  hiring, 
and  afterwards,  up  to  the  bringing  of  this  suit,  and  introduced 
evidence,  which,  if  believed,  tended  to  show  the  hiring  of 
said  slave,  Dave,  by  the  plaintiff  to  the  defendant  on  the  terms 
alledged,  and  for  the  time  aforesaid,  and  that  he  went  imme- 
diately into  the  defendant's  possession. 

The  defendant  then  introduced  evidence,  which,  if  believed, 
tended  to  show  that  said  slave,  Dave,  went  back  into  plain- 
tiff's possession,  at  old  christmas,  next  after  the  hiring,  and  so 
remained  in  his  possession  to  the  bringing  of  this  suit ;  and  fur- 
ther introduced  evidence,  wliich  tended  to  show  tliat  there  were  • 
some  writings  to  be  drawn  about  the  hiring  of  Dave,  and  that 
plaintiff  took  possession  of  him,  because,  as  he  alleged,  the 
terms  of  hiring  were  not  complied  witli,  and  tliat  on  defen- 
dant's demand  of  Dave,  plaintiff  refused  to  deliver  him,  unless 
he  would  give  him  a  forthcoming  bond,  which  defendant 
agreed  to  do ;  but  plaintiff  did  not  deliver  said  slave. 

The  plaintiff  then  offered  to  show  a  recovery  of  damages 
by  the  defendant,  of  the  plaintiff,  in  an  action  .of  trover  for 
the  conversion  of  said  Dave,  for  tlie  time  between  the  period 
or  time  of  old  Christmas  and  the  1st  day  of  January,  1859, 
and  that  the  plaintiff  had  paid  the  recovery,  prior  to  bringing 
this  suit;  the  defendant  objected.  The  evidence  was  admit- 
ted.    Defendant  excepted. 

The  plaintiff  then  showed  in  evidence,  such  recovery  of 
him,  by  the  defendant,  and  a  payment  thereof,  prior  to  bring- 
ing the  present  action.  The  recovery  was  for  the  sum  of 
$185,00. 

The  Judge  charged,  that  if  the  evidence,  on  the  part  of  the 
plaintiff,  was  believed,  though  they  might  believe  the  evidence 
on  the  part  of  the  defendant,  the  plaintiff  was  entitled  to  their 
verdict  for  the  hire  of  Dave,  provided  the  defendant  had  af- 
firmed the  original  contract  of  hiring,  as  an  executed  contract, 
by  bringing  an  action  of  trover  for  the  recovery  of  damages 
for  the  conversion  of  Dave  for  the  time  aforesaid,  and  by  a 
recovery  therefor,  and  the  defendant  had  paid  the  same; 
otherwise  the  verdict  must  be  for  the  defendant.     And  that 


DECEMBER  TERM,  1860.  213 

Odoin  V.  Bryan. 

if  they  found  for  the  plaintiff,  they  might  give  him  interest 
on  the  hire. 

There  was  a  verdict  for  the  plaintiff.  Judgment.  Appeal 
by  defendant. 

Dortch  and  Moore^  for  the  plaintiff. 

*/!  L,  Bridgers  and  Vonigland,  for  the  defendant. 

Battle,  J.  If  a  slave  be  hired  for  a  year,  or  any  other  cer- 
tain time,  for  a  stipulated  price,  secured  by  a  bond,  the  con- 
tract will  be  one  executed  b}'^  both  parties,  and  the  owner  may 
recover  the  full  amount  of  the  bond,  though  he  take  back  the 
slave  before  the  end  of  the  year,  against  the  will  of  the  hirer, 
the  latter  being  entitled  to  sue  for  and  recover  damages 
against  the  owner  for  his  breach  of  the  contract.  Hurdle  v. 
Illdiardson^  7  Jones'  Rep.  16.  The  hirer  might  also  sustain 
an  action  of  trover  for  the  taking  and  conversion  of  the  slave, 
for  the  unexpired  term  of  the  hiring,  and  thus  recover  the 
value  of  the  slave  for  such  term.  But  in  a  case  of  hiring  for 
a  certain  time,  at  an  agreed  price,  not  secured  by  a  bond  or 
note,  the  contract  is  a  continuing  executory  one,  and  the 
owner  who  shall  take  away  his  slave  against  the  hirer's  con- 
sent, cannot  recover,  either  upon  the  special  contract  or  on  a 
tpianturti  mermt  for  the  time  during  which  the  slave  was  in 
the  hirer's  service  ;  ^Vhite  v.  Broimi^  2  Jones,  403 ;  Nihlet  v. 
Jlerrimj^  4  Jones,  262. 

In  the  case  now  under  consideration,  the  contract  of  hire 
Tv'as  like  those  in  the  cases  last  mentioned,  of  an  executory 
character,  and  upon  the  plaintiff's  retaining  his  slave  from  the 
defendant,  without  his  consent,  the  latter  might  have  treated 
the  contract  as  broken,  and  put  an  end  to  by  the  plaintiff,  and 
in  consequence  thereof,  might  have  refused  to  pay  any  thing 
for  the  time  the  slav-e  was  in  his  service.  lie  declined  to  take 
tliat  course,  but  on  the  contrary,  he  proceeded  to  act  as  if  the 
contract  were  a,n  executed  one,  by  bringing  an  action  of  tro- 
ver, in  which  he  recovered  from  the  owner,  as  damages,  the 
value  of  the  slave  for  the  time  unexpired  of  the  term  of  the 


214:  m  THE  SUPEEME  COURT. 

MacKey  v.  Neill. 

hiring.  The  amonnt  of  tliis  recovery  was  afterwards,  but  be- 
fore the  bringing  of  tliis  suit,  paid  b}'-  the  plaintiff  to  tlie  de- 
fendant. Supposing  it  doubtful  whether  the  recovery  was  a 
proper  one,  the  defendant  thereby  got  the  full  benefit  of  the  con- 
tract for  the  hire  of  the  slave,  and  he  cannot  be  heard  to  say 
that  he  got  it  under  an  erroneous  judgment  of  a  court  which 
had  jurisdiction  of  the  subject.  Having  thus  obtained  the 
full  benefit  of  the  contract  of  hiring,  on  his  part,  he  cannot 
repudiate  his  obligation  under  it.  He  must  be  considered  as- 
if  he  had  had  the  services  of  the  slave,  during  the  whole  pe- 
riod for  which  lie  liad  hired  liim,  and  of  course  he  must  pay 
for  him,  according  to  his  contract.  The  verdict  and  judg- 
ment against  him,  was  for  the  amount  of  the  agreed  price^ 
with  interest  thereon,  and  for  that,  the  judgment  must  be  af- 
firmed. 

Pek  Curiam,  Judgment  affirmed. 


JOHN  MACKEY  v.  WILLIAM  NEILL. 

All  the  arbitrators  must  concur  in  making  an  award,  unless  it  is  provided  oth- 
erwise by  the  terms  of  submission. 

This  was  an  action  of  i)p:bt,  upon  an  award,  ti'ied  before 
Heath,  J.,  at  a  Special  Term,  June,  1860,  of  Iredell  Superior 
Court. 

The  following  is  a  copy  of  the  submission  : 

"  State  of  Nortli  Carolina, 

Iredell  County. 

"  Know  all  men  by  these  presents,  that  we,  William  Neill 
and  John  MacKey,  are  held  and  firmly  bound  unto  the  State 
of  North  Carolina,  in  the  sum  of  one  thousand  dollars,  to  the 
true  and  faithful   payment   whereof,  we   bind   ourselves,  our 


DECEMBEE  TEEM,  1860.  215 

MacKey  v.  Neill. 

heirs,  executors  and  administrators,  jointly  and  severally, 
firmly  by  these  presents,  signed  with  our  hands,  and  sealed 
with  our  seals. 

"The  condition  of  this  is  such,  that  whereas  the  above 
bounden,  William  Neill  and  John  MacKey,  having  selected 
John  W.  Long,  William  Niceler  and  Henry  Cleninger,  to  set- 
tle a  matter  of  controversy,  in  regard  to  the  damages  sustain- 
ed by  the  said  MacKej^,  in  a  piece  of  land,  whereon  W.  T. 
Kerr  now  resides.  Now,  if  the  said  parties  ahide  hy  the  deci- 
sion of  the  above  referees,  this  obligation  to  be  void,  other- 
wise to  remain  in  full  force  a?id  effect.  Given  under  our 
hands  and  seals,  this  the  1st  day  of  April,  1859. 

Signed,  John  MacKey,  [8eal.'] 

*  William  Neill,  {SealT^'' 

The  award  fixed  MacKey's  damages  at  two  hundred  dollars, 
and  was  signed  by  only  two  of  the  arbitrators,  viz :  William 
Niceler  and  Ilenr}-  Cleninger. 

It  was  proved  by  the  plaintiff',  that  the  other  referee,  to  wit, 
John  AV.  Long,  who  did  not  sign  the  award,  was  present  at 
the  arbitration,  took  part  in  the  deliberations,  but  disagreed 
with  the  majority,  in  their  finding,  as  to  the  amount. 

His  Honor  was  of  opinion  that  the  suit  could  not  be  sus- 
tained upon  the  award  signed  by  two  only,  when  the  submis- 
sion was  to  three,  but  reserved  the  question.  Verdict  for  the 
plaintiff,  subject  to  the  question  reserved.  Afterwards,  upon 
consideration,  his  Honor  set  aside  the  verdict,  and  directed  a 
nonsuit  to  be  entered.     Plaintift'  appealed. 

TF.  P.  CaUhoell,  for  the  plaintiff. 
Mitchell^  for  defendant. 

Pearson,  C.  «T.  It  is  a  well  settled  rule  of  law,  that  all  of 
the  arbitrators  must  concur  in  making  an  award,  unless  it  is 
provided  otherwise  by  the  terms  of  the  submission,  by  insert- 
ing, "Their  award,  or  the  award  of  any  two  of  them,  shall  be 
binding,  tfcc,"  which  is  the  usual  form. 

No  authority  was  cited,  and  no  reason  was  suggested,  for 


fli  m  THE  SUPEEIVIE  COURT. 


Morris  v.  Clay. 

disturbing  this  principle  of  the  law,  and  it  is  not  necessary  to 
enter  into  a  discussion  of  the  subject. 
There  is  no  error. 

Pee  Cukia:m,  Judgment  affirmed. 


WILLIAM  MORRIS  ei  ux  u  JOHN  H.  CLAY,  Advi'r. 

The  modern  decisions  have  qualified  the  old  doctrine,  that  a  naan  shall  not  be 
heard  to  allege  his  own  lunacy  or  intoxication,  and  these  are  now  held  to 
be  a  defense  to  acts  done  under  their  prevalence. 

Action  of  debt,  tried  before  Saunders,  J.,  at  the  last  Fall 
Term  of  Person  Superior  Court. 

The  bond  declared  on  was  made  by  Long,  the  defendant's 
intestate,  as  a  means  of  giving  to  the  plaintiff's  wife  (his  sister) 
the  sum  called  for  in  it,  $500.  The  proof  of  its  execution  was 
unquestioned,  but  it  was  alleged  that  the  intestate,  at  the  time 
he  made  the  bond,  was  non  compos  mentis,  arising  from  ex- 
treme drunkenness  and  mental  debility  ensuing  therefrom. 
There  was  evidence  j?>ro  and  con  as  to  the  state  of  Long's  in- 
tellect, and  the  only  question,  in  the  case,  is,  as  to  his  Hon- 
or's instruction  as  applicable  to  this  evidence.  The  case  states 
that  the  "  Court  charged  that  the  law  did  not  consider  drunk- 
enness alone,  a  sufficient  reason  to  invalidate,  except  when 
carried  to  such  an  excess  as  to  deprive  the  party  of  all  con- 
sciousness as  to  what  he  was  then  doing,  and  whatever  may 
have  been  the  law,  the  party  was  "  never"  (now  ?)  allowed  to 
stultify  himself  by  showing  he  was  not  capable,  from  drunk- 
enness, of  understanding  the  act  which  he  had  done.  In  the 
present  case,  if  the  jury  .believed  the  bond  had  been  written 
at  the  request  of  the  deceased  for  the  $500,  with  the  view  of 
making  his  sister  a  present,  no  matter  what  may  have  been 


DECEMBER  TERM,  1860.  217 

• 

Morris  v.  Clay. 


his  motive,  and  that  he  understood  what  he  was  doing,  and 
did  what  he  intended  to  do  when  he  execnted  the  bond,  the 
jniy  should  find  for  the  phaintifts.  But  on  the  other  hand,  if 
he  did  not  have  capacit}'^  of  understanding  what  he  was  do- 
ing from  the  effects  of  hard  drink  or  paroxysm  of  delirium 
tremens  or  any  other  cause,  they  should  find  for  the  defendant." 
Defendant's  counsel  excepted  to  the  charge. 

Verdict  for  the  plaintiffs.     Judgment  and  appeal  by  the 
defendant. 

Jieade,  for  the  plaintiffs. 

Fowle  and  llill^  for  the  defendant. 

Pearson,  C.  J.  The  charge  of  iiis  Honor,  when  he  comes 
to  make  the  application  of  the  law  to  the  case,  then  being 
tried,  is  supported  by  all  the  modern  authorities,  and  he  gives 
the  defendant  the  full  benefit  of  the  law,  as  it  is  noio  under- 
stood to  be,  in  opposition  to  the  exploded  dogma  of  the  old 
law,  "  that  a  man  could  not  be  heard  to  stultify  himself." 
Indeed,  the  only  matter  which  has  at  all  embarrassed  this 
Court,  arises  out  of  the  general  remarks  at  the  commencement 
of  the  charge,  in  which  his  Honor  is  made  to  say,  "  whatever 
may  have  been  the  law,  the  party  was  never  allowed  to  stul- 
tify himself."  This  is  inconsistent  with  the  particular  charge 
in  reference  to  the  case  before  him,  but  may  be  reconciled  by 
the  suggestion  that  the  word  "  never,"  was  inserted  by  mis- 
prison in  place  of  the  word  "now,"  which,  on  examination, 
was  the  word  first  written  by  the  clerk,  and  is  crossed  out. 
So,  we  are  satisfied  it  ought  to  read  whatever  may  have  been 
tlie  law^  the  party  was  now  allowed  to  stultify  himself;  which 
is  in  exact  accordance  with  what  is  said  by  Pakk  B.  in  Gore 
V.  Gihson^  13  Mees.  and  Wells.  623  :  "The  modern  decisions 
have  qualified  the  old  doctrine,  that  a  man  shall  not  be  allowed 
to  allege  his  own  lunacy  or  intoxication  ;  and  total  drunken- 
ness is  now  held  to  be  a  defense."  See  1  Parson's  on  Con- 
tracts, 310,  note  m. 


218  m  THE  SUPREME  COURT. 


Wiseman  v.  Cornish. 

We  feel  warranted  in  understanding  from  the  whole  record, 
that  such  was  the  charge  of  his  Honor.     There  is  no  error. 

Per  Curiam,  Judgment  affirmed. 


JAMES  WISEMAN,   Chairman  of  County  Court,  ex  rel.  of  William  Kesler 
V.  JAMES  CORNISH. 

Wiiere,  in  a  suit  upon  an  apprentice  bond,  the  question  was,  whether  the  re- 
lator was  of  age  at  the  bringing  of  the  suit,  and  his  mother  was  introduced 
to  testify  as  to  his  age,  it  was  held  that  a  record  of  births,  made  in  the 
family  Bible,  under  the  dictation  of  the  mother,  by  one  since  deceased,  sev- 
eral years  after  the  birth  of  the  relator,  but  before  he  was  bound  out,  was 
admissible  as  evidence  to  corroborate  the  mother's  statement. 

There  is  no  rule  of  law,  that  the  fact  of  a  witness'  standing  in  the  relation  of 
mother  to  one  of  the  parties,  naturally  gives  a  bias  to  her  statement,  by 
affecting  her  recollection,  but  such  relation  is  a  matter  for  the  consideration 
of  the  jury  alone. 

This  was  an  action  of  covenant  on  an  apprentice  bond, 
tried  l)efore  Osborne,  J.,  at  a  Special  Term,  July,  1860,  of 
Davidson  Superior  Court. 

The  only  question  in  the  case  was,  whetlier  the  relator  was 
twenty-one  years  of  age  at  the  time  the  action  was  brought. 

The  mother  of  tlie  rehitor,  swore  that  tlie  relator  was  born 
on  the  lOtli  of  March,  1837.  The  writ,  in  this  case,  M^as  issued 
on  the  20th  day  of  April,  1858.  In  lier  examination  in 
chief,  the  motlier  gave  the  day  of  tlie  birth  of  each  of  her 
children  in  order.  To  confirm  t]\e  accuracy  of  lier  recollec- 
tion, the  plaintiff  offered  in  evidence  a  record  of  births  of  her 
children,  made  in  the  family  Bible,  in  the  year  1842,  some  years 
before  the  date  of  the  apprentice  bond,  on  which  this  suit  is 
brought.  This  record,  it  was  proved,  was  made  by  a  man, 
now  deceased,  by  the  name  of  Tow,  at  the  dictation  of  the 


DECEMBER  TERM,  1860.  21^ 

Wiseman  v.  Cornish. 

M'itness.  Two  witnesses  proved  that  it  was  in  the  hand-wri- 
tinir  of  Tow,  and  that  the^^  had  seen  it  in  1842.  The  testimo- 
ny was  objected  to  on  tlie  part  of  tlie  defendant,  but  w^as  ad- 
mitted by  the  Court,  in  confirmation  of  the  statement  of  the 
mother. 

There  was  other  testimony,  tending  to  show,  that  the  rela- 
tor was  born  on  the  loth  of  March,  1838. 

In  the  course  of  tlie  argnmcnr,  defendant's  counsel  insisted 
that  the  i-elation  of  the  mother  to  the  relator,  would  naturally 
give  a  bias  to  her  statements,  and  moved  the  Court  so  to 
charge,  but  also  admitted  that  he  did  not  impeach  lier  vera- 
city or  iicr  integrity,  but  only  the  accui-acy  of  her  recollec- 
tion. The  Court  submitted  to  the  jury,  the  question  of  fact, 
as  one  for  their  consideration,  whether  tlie  relator  was  twenty- 
one  years  of  age  at  the  time  the  suit  was  brought,  which  it 
was  admitted,  depended  on  tlie  question,  whether  he  was 
born  on  the  10th  of  March,  1837,  or  tlie  lOtli  of  March,  1838, 
that  in  the  investigation,  tlie  family  record  was  not  evidence 
of  itself,  of  the  fact  in  controversy,  and  only  evidence,  so  far 
as  they  might  suppose  it  tended  to  confirm  the  accuracy  of 
the  recollection  of  the  mother,  it  having  been  made  before 
the  relator  was  bound  out,  was  to  be  regarded  as  in  the  na- 
ture of  a  statement,  made  by  lier,  before  the  controversy  arose. 
The  Court  made  no  remarks  to  the  jury,  on  the  relation  of 
the  mother  to  the  relator.  For  this  reason,  and  because  of 
the  admission  of  the  testimony,  the  defendant  moved  for  a 
new  trial,  the  verdict  being  for  the -relator,  and  upon  this 
being  refused,  defendant  appealed  to  this  Court. 

Scott^  for  the  [daintiff. 

McLean  and  Kittrell^  for  the  defendant. 

Pkarsox,  C.  J.  The  record  of  births  in  the  family  Bible, 
was  admissible  for  the  purpose  of  corroborating  the  testimony 
of  the  mother,  and  the  necessary  explanation  was  made  by 
his  Honor. 

Tliere  is  no  rule  of  law,  that  the  relation  of  mother  to  the 


320  IN  THE  SUPREME  COURT. 

State  V.  N<M"maTi. 

party   "  natnrallj'-  gives  a  bias  to  her  statements,   so   as   to 
affect  the  accuracy  of  lier  recollection." 

We  concur  with  his  Honor,  that  it  was  unnecessary  to  allude 
to  this  subject  in  the  charge.  The  defendant  having  had  all  the 
benefit  of  it,  to  which  he  was  entitled  by  the  remarks  of  his 
counsel,  and  it  was  a  consideration  peculiarly  fit  for  the  jury, 
who  are  supposed  to  be  judges  of  human  nature,  and  capable 
of  making  due  allowance  in  consequence  of  the  relation  of 
witnesses  to  the  parties,  in  the  same  way  they  do  for  the 
behaviour  of  witnesses  on  the  stand,  without  having  their  at- 
tention particularly  called  to  it  by  the  Judge.  There  being 
no  rule  of  law  in  regard  to  it,  the  matter  must  be  left  to  the 
discretion  of  the  J  udge  ;  it  is  for  him  to  decide,  even  although 
requested  by  the  counsel,  whether,  under  the  circumstances, 
the  due  administration  of  the  law  required  any  special  refer- 
ence to  such  matters.     There  is  no  error. 

Per  Cueiajsi,  Judgment  afiirmed. 


STATE  V.  NEHEMIAH  NORMAN. 

One  to  whom  a  free  negro  is  hired  by  a  court,  for  the  payment  of  a  fine, 
(Rev.  Code,  oh.  107,  sec.  75)  has  no  right  to  beat  him  for  an  unlawful  ob- 
ject, or  of  malice. 

Tins  is  an  indictment  for  assault  and  battery,  tried  before 
Dick,  J.,  at  the  Spring  Term,  1860,  of  Washington  Superior 
Court. 

The  off'ense  is  alleged  to  have  been  committed  on  the  body 
of  one  Richard  Fisher,  a  free  man  of  color,  and  the  jur}^  found 
a  special  verdict :  to  the  efl'ect  "  that  the  said  Fisher  had  be- 
fore that  time  been  convicted  of  larceny,  in  the  County  Court 
of  Washington,  and  by  the  Court  was  ordered  to  be  sold  for 


DECEMBER  TERM,  1860.  221. 

State  V.  Norman. 

the  fine  imposed,  to  cover  the  costs,  and  was  so  sold  for  live 
years  to  one  Peacock.  Before  the  expiration  of  this  tiniCT 
Fisher  was  taken  up  on  the  charge  of  killing  one  Ilussell^ 
who  was  found  dead  in  liis  yard,  and  the  defendant  gave  him 
tive  licks  to  make  him  show  where  the  gun  was,  with  which 
he  killed  Ilussell.  Peacock  M'as  present  when  Fisher  wa& 
whipped,  and  gave  his  consent  to  it,  and  said  it  ought  to  be 
done."  Upon  this  finding,  his  Honor  was  of  opinion  that  the 
defendant  was  not  guilty,  and  so  adjudged  ;  from  which  judg- 
ment the  State  appealed. 

Attorney  General^  for  the  State. 
Winston^  Jr.,  and  //.  ^1.  Gilliam,  for  tlie  defendant. 

Manly,  J.  The  judgment  of  the  Court  below,  upon  the 
special  finding'  of  the  jury,  wa&  erroneous.  The  leading  facts 
of  the  finding  are,  that  the  man,  Fisher,  upon  whom  the  bat- 
tery was  committed,  had  been  hired  to  one  Peacock,  to  pay 
the  penalty  in  a  case  of  misdemeanor,  and  therefore  stood,  by 
the  terms  of  the  law,  Rev.  Cfxie,  ch.  107,  sec,  75,  in  the  rela- 
tion of  apprentice  to  Peacock.  Peacock  assented  to  the  bat- 
tery. The  battery  was  committed  to  compel  Fisher  to  furnish 
evidence  of  his  own  guilt,  upon  an  accusation  of  homicide. 

No  free  person,  o-f  whatsoer  color,  can,  according  to  law,  be 
thus  coerced.  It  cannot  be  done  by  the  person  who  stands  in 
the  relation  of  master,  and  his  assent,  therefore,  cannot  legal- 
ise it.  It  is  unnecessary,  as  we  think,  to  enter  upon  a  gene- 
ral discussion  of  the  relation  between  master  and  apin-entice 
nnder  this  law  of  the  Code ;  for,  however  it  may  be  as  to 
their  respective  rights  and  duties,  in  other  respects,  we  are 
clear  the  master  cannot  whip  for  an  unlawful  purpose.  If  the 
apprentice,  under  the  law,  be  in  the  condition  of  one  who  can 
be  whipped  for  correction,  and  we  hold  the  man  ma}'  be  whip- 
ped for  such  an  object,  still,  the  power  of  punishment,  in  this 
way,  would  be  restricted  to  lawful  objects,  and  if,  under  jn-e- 
tense  of  correction,  the  master  whipped  of  malice,  or,  which 
we  regard  as  equivalent,  for  an  illegal  object,  it   would  be  a 


•222  m  THE  SUPREME  COUET. 

Styron  v.  Bell. 

violation  of  law.  Where  one  has  a  discretionary  power  of 
whipping  for  correction,  and  resorts  to  it  in  good  faith,  the  law 
will  not  hold  him  to  an  account  for  any  error  of  judgment  in 
respect  to  the  need  for  it,  or  in  respect  to  the  amount,  unless 
it  be  grossly  excessive.  But  it  is  different  wdiere  the  whipping 
is  inflicted  for  an  unlawful  object,  or  of  malice.  In  such  ca- 
ses, every  blow  is  an  unlawful  batter3^  It  has  been  thought 
proper,  by  the  Legislature,  to  place  the  negro  convict,  who  is 
sold  for  the  pecuniary  penalty  annexed  to  his  offense,  in  the 
condition  of  an  apprentice.  This  relation  we  find  regulated 
by  general  principles,  and  to  the  benefit  of  them  tlie  man  is 
entitled  in  this  case.  The  five  blows  inflicted  under  the  cir- 
cumstances, make  it  a  case  of  minor  importance ;  but  never- 
theless, we  think,  for  the  reasons  given,  that  it  is  technically 
an  indictable  battery. 

The  judgment  below  should  be  reversed,  and  judgment  en- 
tered on  the  verdict  for  the  State.  To  this  end,  this  opinion 
will  be  certified. 

Per  CuKiAivi,  Judgment  reversed. 


ROBERT  STYRON  v.  J.  W.  BELL. 


A  parol  agreement  between  an  executor  and  a  purchaser  of  the  property  of 
the  estate,  that  the  latter  shall  pay  all  of  a  particular  class  of  debts  due  by 
the  testator,  does  not  entitle  one  of  that  class  of  creditors  to  sustain  a  suit 
against  such  purchaser. 

This  was  an  action  of  assumpsit,  upon  a  special  contract, 
tried  before  Howaed,  J.,  at  the  last  Fall  Term  of  "Washington 
Superior  Court. 

The  declaration  was  that  defendant  promised  and  under- 
took to  pay  a  debt,  which  one  Pettijohn  owed  the  plaintiff. 


DECEMBER  TEEM,  1860.  223 

Styron  v.  Bell. 

It  was  proved  that  Pettijohn  owned  the  schooner,  "  J.  T. 
Davenport,"  and  havin<^  died,  his  executor  exposed  the  ves- 
sel to  sale,  at  public  auction,  when  the  defendant  became  the 
last  and  highest  bidder,  at  a  price  much  below  ]ier  value.  A 
condition  of  this  sale  was,  that  the  purchaser  should  pay  all 
the  debts  due  by  Pittijohn  on  tlie  said  schoonei-'s  account. 
Among  otlier  debts,  tlins  due,  was  that  of  the  plaintiff,  which 
liad  been  contracted  for  lighterage.  There  was  no  evidence 
that  tlie  plaintiff  was  present  at  the  sale,  or  that  the  debt  was 
mentioned  specifically,  or  that  the  plaintiff  and  defendant, 
after  the  sale,  had  any  understanding  about  the  matter. 

The  defendant's  counsel  said,  that  if  the  Court  was  of  opin- 
ion tliat  the  promise  to  Pettijohn's  executor  would  support 
the  dochiration  of  a  promise  to  the  ])laintiff,  and  that  the  stat- 
ute did  not  require  the  promise  to  be  in  writing,  then  he  ad- 
mitted the  plaintiff  was  entitled  to  a  verdict. 

"  The  Court  being  of  opinion  that  the  money  paid  at  the 
sale  and  the  amount  of  debts  really  constituted  the  price  of 
the  schooner,  and  tlie  arrangement  made  resolved  itself  into 
a  deposit  by  the  vendor  of  the  amount  of  the  debts  with  the  de- 
fendant, held  that  the  statute  did  not  apply,  and  that  the  pro- 
mise was  well  pleaded."     Defendant's  counsel  excepted. 

Verdict  and  judgment  for  the  plaintiff,  and  appeal  by  the 
defendant. 

Winston,  Jr.,  for  the  plaintiff. 
II.  A.  G'UUain,  for  the  defendant. 

Manly,  J.  According  to  the  view  which  we  take  of  this 
case,  the  true  <piestion  is,  whether  there  has  been  a  valid  sub- 
stitution of  one  debtor  for  another.  By  the  purchase  of  the 
schooner,  the  defendant.  Bell,  became  bound  to  the  executor 
of  Pettijohn  for  the  sum  bid,  and  also  undertook  to  pay  the 
debts  due  from  the  testator,  on  account  of  the  schooner,  in- 
cluding the  debt  in  question. 

Considering  this  transaction  in  the  most  favorable  light  for 
the  plaintiff,  and  we   have  the   defendant   indebted    for   the 


224  m  THE  SUPREME  COURT. 

Styron  v.  Bell. 

schooner  to  the  executor,  in  sundi-y  amounts,  including  phiin- 
tiff 's  debt,  and  an  ao-reement  between  executor  and  defend- 
ant, that  the  latter  should  pay  tliese  debts  to  the  various 
creditors. 

Such  a  substitution  of  one  debtor  for  another  is  practicable 
without  writing,  but  it  cannot  be  effected,  except  by  clear 
and  unequivocal  assent  on  the  part  of  the  creditor,  and  a  dis- 
charge by  him  of  the  original  debtor  and  an  acceptance  of 
the  substituted  one.  There  must  be  a  mutual  agreement  be- 
tM^een  all  the  then  parties  (tlie  creditor,  his  immediate  debt- 
or, and  his  intended  new  debtor)  to  the  substitution.  For,  if 
the  original  debt  continues  to  subsist,  there  is  no  considera- 
tion. Addison  on  Contracts,  1004-5;  Cuxori  v.  Chadley^  10 
Eng.  Com.  L.  Rep.  191. 

The  question,  then,  is,  has  the  creditor,  Styron,  made  him- 
self a  party  to  this  arrangement,  by  assenting  to  it — discharg- 
ing the  original  debtor  and  accepting  the  defendant.  Bell,  in 
his  stead,  so  as  to  establish  a  consideration,  a  promise  aiid  the 
relation  between  the  parties  of  creditor  and  debtor  in  respect 
to  this  demand  due  from  Pettijohn's  estate  ? 

It  seems  from  the  statement  of  facts  in  the  case,  that  Sty- 
ron was  not  pi'esent  at  the  sale  of  the  schooner  or  at  the  agree- 
ment, as  above  stated,  tliat  the  debt  to  liim  was  not  mention- 
ed particularly,  and  that  plaintiff  and  defendant  liad  neither 
interview  nor  understanding  about  tlie  matter  since  the  sale. 

Upon  this  state  of  facts,  there  seems  to  be  no  evidence  of 
an  assent,  on  the  part  of  Styron,  to  the  extinguishment  of  his 
demand  against  the  executor  of  Pettijohn,  or  of  his  purpose 
to  accept  Bell  instead  of  the  other.  All  tliat  can  be  reasona- 
bly inferred  from  the  fact  that  he  has  instituted  suit  against 
Bell,  is,  that  lie  is  willing  to  look  to  him  as  a  colhiteral  source 
from  which  the  money  may  be  obtained.  The  case  of  Cnxon 
V.  Chadley  above  referred  to,  raised,  mainly,  the  question 
whether  the  original  debtor  had  been  discharged,  so  as  to 
raise  a  consideration.  It  was  proved  that  the  creditor  had 
made  a  transfer  on  his  books  of  the  debt,  to  the  account  of  the 
new  debtor,  but  nothing  else  appearing,  it  was  held  insuflB- 


DECEMBER  TERM,  1860.  225 

Styron  v.  Bell. 

cient.  "  It  must,"  says  the  Court,  "  be  expressly  agreed  to 
discharge  the  original  debtor.  There  is  nothing  in  the  case 
from  wliich  such  an  agreement  ma}^  be  even  inferred.  The 
demand  of  the  money,  if  one  had  been  made,  would  not  jus- 
tify such  inference,  for  that  is  entirely  consistent  with  his  tak- 
ing it  as  collateral  security.  Supposing  it  to  be  merely  an  in- 
dicative or  collateral  source  of  payment,  it  would  be  strange 
to  hold  that  a  demand,  accompanied  by  refusal,  would  be  a 
discharge  of  the  prior  debtor.  A  suit  is  no  more  decisive  evi- 
dence of  a  substitution,  than  a  demand,  and  the  bringing  of  a 
suit  cannot  be  considered  an  act  of  assent  to  the  contract,  and 
thereby  support  the  action ;  for  by  the  supposition,  there  was 
no  contract  until  the  suit  was  brouglit." 

There  is  a  class  of  cases  in  which  a  promise  to  one  is  held 
to  enure  to  the  benefit  of  another,  but  all  these  cases,  it  is  be- 
lievctl,  turn  upon  the  idea  of  principal  and  agent,  and  iiave 
no  bearing  on  the  one  now  before  us.  The  construction  which 
we  put  upon  the  admission  of  the  defendant's  counsel,  leaves 
open  the  question  which  we  have  here  discussed,  viz :  the 
sufficiency  of  a  consideration,  as  between  the  parties,  to  sup- 
port a  promise  by  implication  from  the  one  to  the  other. 
There  is  no  evidence  that  Bell  was  ever  looked  to  by  Styron, 
as  an  indicative  or  collateral  source  for  payment,  or  that  there 
was,  by  arrangement,  an  extinguishment  of  his  claim  upon 
the  estate  of  Pettijohn,  and,  consequently,  there  was  no  con- 
sideration between  them,  for  the  promise  alleged  as  the  basis 
of  this  suit. 

The  view  taken  of  the  case,  by  the  Court  below,  does  not 
at  all  affect  our  conclusions.  Assuming  that  the  substance  of 
the  transaction  between  the  executor  and  Bell,  was  the  leav- 
ing of  a  sum  of  money  in  the  latter's  hands,  to  pay  Styron, 
and  other  creditors  of  Pettijolm,  it  will  follow,  upon  princi- 
ple and  authority,  that  it  cannot  be  recovered  by  Styron,  ex- 
cept by  a  novation  or  substitution  of  one  debtor  for  the  other, 
in  the  manner  already  stated.  The  case  of  ButUrfidd  v. 
IlarUlioni^  7  New  Hampshire  Rep.  345,  was  a  case  precisely 

16 


226  IN  THE  SUPREME  COURT. 

, — — — . _ * 

Hays  V.  Askew. 

of  the  kind  supposed,  and  it  was  there  held  the  action  could 
not  be  sustained. 

The  statute  of  frauds,  making  void  promises  to  pay  the 
debt  of  another  without  writing,  would  be  an  obstacle  to  the 
recovery  in  other  points  of  view,  but  we  think  it  unnecessary 
to  enter  upon  that. 

There  should  be  a  venire  de  novo. 

Per  Cukiam,  Judgment  reversed. 


WILLIAM  HAYS  v.  JOHN  0.  ASKEW. 

Whether  the  rule,  applicable  in  questions  of  boundary,  where  an  unnavigable 
stream  or  a  public  highway  is  called  for,  that  is,  to  run  to  the  middle  of  the 
stream  or  road,  is  applicable  to  a  private  way — quere  ? 

Where  the  beginning  corner  of  a  deed  is  on  a  private  avenue,  and  the  other 
calls  of  the  deed  come  back  to  the  mouth  of  the  avenue,  and  "  thence  down 
the  said  avenue  to  the  beginning,"  "  reserving  forever  twenty  feet  for  my 
avenue,"  it  was  held  that  this  reservation  explained  the  meaning  of  the 
grantor  to  be  to  run  to  the  middle  of  the  avenue,  and  thence  down  it  in 
the  middle  to  a  point  opposite  the  beginning,  thence  to  the  beginning. 

Tins  was  an  action  of  trespass  quare  clauswni  fregit^  tried 
before  Howard,  J.,  at  the  last  Fall  Term  of  Hertford  Superior 
Court. 

The  plaintiff  introduced  a  deed  from  the  defendant  to  Iiim, 
containing  the  following  clause  descriptive  of  the  land  con- 
veyed, viz  :  "  Beginning  at  a  small  sweet  gum  on  my  avenue, 
thence  along  an  old  path  to  a  pine,  thence  by  a  small  black 
gum  (fore  and  aft)  to  a  small  sweet-gum,  a  corner  ;  thence  a 
southern  course  to  a  dead  white-oak  ;  tlience  to  a  white  oak ; 
thence  to  a  dead  red-oak  ;  thence  to  another  dead  red-oak  ; 
thence  to  a  small  black  gum  ;  thence  from  black  gum,  a  contin- 
ued straight  line  to  Lenton  landing  road  ;  thence  down  said 


DECEMBER  TERM,  1860.  227 

Hays  v.  Askew. 

road  to  my  avenne,  leading  to  my  dwelling-honse  ;  hcve,  I  re- 
serve the  width  of  twenty  feet  for  my  avenne  ;  thence  down 
said  avenue  to  the  sweet  gum,  the  first  station  ;  still  reserving 
forever  the  width  of  twenty  feet  for  my  avenne  to  honse." 

A  surveyor  testified  that  the  land  was  on  the  north  side  of 
the  avenue  ;  that  the  "  sweet  gum,  beginning  corner,"  was 
on  the  same  side  ;  that  after  running  around  the  land  and 
coming  back  to  the  avenue,  if  the  line  ran  down  the  side  of 
the  avenue  to  the  "  sweet  gum,  the  beginning  corner,"  the 
deed  did  not  cover  the  locns  in  quo  /  but  that  if  it  went  to 
the  centre  of  the  avenne,  and  then  to  the  beginning  corner, 
that  it  would  include  it. 

The  Court  instructed  the  jury,  that  the  proper  construction 
of  the  deed  was  to  run  the  line  along  the  side  of  the  avenue. 
In  submission  to  this  opinion,  the  plaintifi'  took  a  nonsuit  and 
appealed. 

Garrett^  for  the  plaintiff. 
Winston,  Jr.,  for  the  defendant. 

Battle,  J.  When  this  case  was  before  this  Court  on  for- 
mer occasions,  it  was  taken  for  granted  that  the  deed  from  the 
defendant  to  the  plaintiff  conveyed  the  soil  of  a  part  of  the 
grantor's  avenue,  reserving  an  easement  thereon,  and  the  on- 
ly question  then  made,  related  to  the  form  of  the  action  and 
the  amount  of  damages.  Now,  the  question  is,  whether  the 
deed  conveys  any  part  of  the  soil  over  which  the  defendant's 
avenne  extends,  the  defendant  contending  that  the  boundary 
of  the  land  commences  on,  and  the  last  line  runs  along  the 
edge  of  the  avenue,  and  that  the  land,  conveyed,  lies  entirely 
outside  of  it.  As  it  is  a  question  of  boundary,  it  is  to  be  re- 
gretted tliat  the  land  was  not  surveyed,  showing,  among  oth- 
er things,  the  width  of  the  avenne  before,  and  at  the  time  of 
conveyance,  and  a  plat  made  of  it  and  sent  up  as  a  part  of 
the  case.  We  might  thus  have  been  enabled  to  understand 
more  clearly  the  precise  question  in  dispute,  and  might  possi- 
bly have  come  to  a  dili'erent  conclusion  from  what  we  have 


228  m  THE  SUPEEME  COUKT. 

Hays  V.  Askew. 

upon  the  merits  of  the  case.  The  first  call  of  the  deed  is  the 
beginning  "  at  a  small  sweet  gum  on  my  avenne,"  which,  it 
is  stated,  stands  at  the  edge  of  the  avenue.  After  several 
calls,  about  which  there  is  no  dispute,  the  Lenton  landing 
road  is  called  for,  and  the  boundary  is  "  thence  down  said 
road  to  my  avenue,  leading  to  my  dwelling-house,  (here  I  re- 
serve twenty  feet  for  my  avenue)  thence  down  said  avenue  to 
the  sweet  gum,  the  first  station  ;  still  reserving  forever  the 
width  of  twenty  feet,  at  least,  for  my  avenue,  to  ni}^  house." 
In  calling  for  the  avenue,  the  plaintiff  contends  that  the  line 
runs  to  the  middle  of  it,  and  thence  along  the  middle,  until 
it  gets  opposite  the  sweet  gum,  when  it  turns  and  goes  straight 
to  that.  For  this,  his  counsel  cites  2  Smith's  Lead,  cases, 
(p.  216  Am.  Ed.)  where  it  is  said  that  a  call,  in  a  deed,  for  a 
highway,  carries  the  line  to  the  middle  of  the  highway,  in 
analogy  to  the  well  known  rule,  which  extends  a  line  iisque 
adfilurii  aquce^  where  an  unnavigable  river  or  other  stream  is 
called  for.  The  defendant's  counsel  admits  the  law  to  be  as 
contended  for  by  the  plaintiff,  when  a  highway  or  public  road 
is  called  for,  but  denies  its  application  to  a  call  for  a  private 
way  or  avenue,  but  insists  that  as  the'  beginning  corner  is  a 
tree,  standing  on  the  edge  of  the  avenue,  and  the  last  line 
runs  down  the  avenue,  it  must  run  along  the  edge  or  margin 
to  the  beginning.  There  would  be  much  force  in  this  argu- 
ment, were  it  not  repelled  by  the  reservation,  twice  mention- 
ed, of  twenty  feet  for  the  avenue  to  the  grantor's  bouse.  This, 
we  think,  must  be  taken  as  explanatory  of  the  grantor's  in- 
tention, that  the  next  to  the  last  line  should  go  to  the  middle 
of  the  avenue,  and  thence-  down  the  middle,  so  as  to  include 
a  part  of  it.  This  construction  is  confirmed  by  the  fact,  that 
the  parties  have  always  considered  it  heretofore  as  the  true 
one.  See  S.  C.  5  Jones  63,  7  Jones  272. 
Yenire  de  novo. 

Pee  Cueiam,  Judgment  reversed. 


DECEMBER  TERM,  1860.  229 


Williams  v.  Council. 


Doe  on  the  demise  of  BENJAMIN  C.  WILLIAMS  v.  JOHN  T.  COUNCIL- 

A  sale  of  land,  by  a  decree  of  a  court  of  equity,  is,  in  effect,  a  sale  by  the 
owner  of  the  land,  through  the  agency  of  the  court. 

Where  the  land  of  an  infant  was  sold  by  a  decree  of  a  court  of  equity,  and 
the  purchaser  went  into  possession,  but  no  deed  was  made  by  the  master  du- 
ring his  continuance  in  office,  it  was  hdd^  that  during  this  time  the  purcha- 
ser was  in  as  the  tenant  of  the  former  owner,  and  that  his  taking  a  deed 
from  the  master  after  his  going  out  of  oflice,  did  not  change  that  relation. 

Held  further,  that  the  purchaser's  making  a  deed  of  trust  to  secure  debts,  but 
still  remaining  in  possession,  did  not  change  the  relation;  and  make  the 
holding  adverse. 

Held  further,  that  an  agreement  on  the  part  of  such  purchaser  to  sell  the  land 
thus  bid  off  by  him,  absolutely,  and  an  entry  and  possession  of  the  party 
contracting  to  buy,  he  acknowledg-ing  himself  the  tenant  of  the  person  who 
bid  off  the  laud,  did  not  make  the  holding  adverse  to  the  original  owner. 

This  was  an  action  of  e.iectment,  tried  before  Shepherd,  J., 
at  the  Spring  Term,  1S60,  of  Moore  Superior  Court. 

Previous  to  the  year  1831,  Benjamin  C.  AVilliams,  the  lessor 
•of  the  phiintiff,  was  the  owner  of  the  land  sued  for,  and  Coun- 
cil, the  defendant,  waS  in  possession  when  the  suit  was  brought. 

The  defendant  proved  that  Josiah  Tyson,  in  1831,  purchased 
the  land  in  dispute,  at  a  sale  by  the  clerk  and  master  in  equi- 
ty of  Moore  count}'',  under  a  decree  of  the  court,  as  the  pro- 
perty of  Benjamin  C.  Williams,  and  went  into  possession,  and 
«o  continued  for  five  or  six  years,  when  one  William  Watson 
took  possession.  Tyson  did  not  take  a  deed  from  the  clerk 
and  master  until  the  9th  of  January,  1841,  when  one  was 
made  to  him  by  Bryan  Burroughs,  who  was  in  office  when 
the  sale  was  made,  but  was  not,  when  the  deed  was  made. — 
In  1812,  Tyson  agreed  to  sell  the  land  to  the  said  Watson,  for 
^3500,  and  the  payment  was  to  be  made  from  the  proceeds  of 
the  estate  of  Watson's  wife,  in  the  hands  of  J.  B.  Cox,  her 
trustee,  and  he  entered  into  bond  to  make  title  to  said  Cox,  as 
trustee,  when  the  purcliase  money  should  be  paid.  Watson, 
at  that  time,  entered  into  the  possession  as  the  tenant  of  Tyson, 
and  continued  to  hold  possession  as  such^,  for  ten   or   twelve 


230  IN  THE  SUPREME  COURT. 

Williams  v.  Council. 

years,  viz,  till  March,  1853,  when  he  left  without  surrendering 
the  possession  to  him,  or  any  one  for  him.  The  purchase 
money  was  paid  about  1846,  principally  by  J.  B.  Cox  the 
trustee,  but  partlj^  by  Moses  Cox,  a  brother  of  Mrs.  Watson. 
In  1852,  Watson  called  on  Tyson  to  make  a  deed  for  the  land 
to  J.  B.  Cox,  which  was  done  on  17th  of  February,  1853. — 
The  defendant  also  offered,  in  evidence,  a  deed  from  the  said 
Cox,  dated  17th  of  February,  1853,  and  he  took  possession  of 
the  land  not  long  after  Watson  left,  viz :  some  time  in  March^ 
1853. 

Previously  to  the  sale  to  Watson,  to  wit,  on  the  9l;h  of  Feb- 
ruary'-, 1841,  Tyson  executed  a  deed  of  trust  to  one  Roberts, 
to  secure  the  payment  of  debts,  therein  named,  but  no  sale 
was  ever  made  under  it,  and  no  action  taken  upon  it,  and 
Tyson's  possession  was  continued  as  above  stated. 

It  was  admitted  that  Benjamin  C.  Williams  became  of  age 
on  20th  of  September,  1842.  This  suit  was  commenced  on 
29th  of  December,  1857. 

Upon  these  facts,  His  Honor  being  of  opinion  that  plaintiff 
could  not  recover,  the  plaintiff  took  a  nonsuit  and  appealed. 

£.  F.  Moore^  for  the  plaintiff. 
Winston^  jSr.,  and  /Strange,  for  the  defendant. 

Pearson,  C.  J.  This  suit  is  for  the  same  land  which  was 
the  subject  of  controvei'sy  in  the  case  of  Williams  v.  Councily 
decided  at  Decembei'  Term,  1850,  4  Jones'  Rep.,  206.  But 
the  facts  now  pi'esente«.I,  are  not  the  san^e.  Tiie  deed  of  trus-t,, 
executed  by  Tyson  to.  Roberts,  9th  Februaiy,  1841,  was  not 
then  in  evideiice,  and  the  Court  is  not  now  in  possession  of  the 
fact,  which  was  then  in  evidence,  that  Benjamin  C  Williams 
had  commenced  an  action  of  ejectment  against  William  Wat- 
son, on  20th  of  June  1845,  which  pended  until  Spring  Term 
1853.     So  we  have  one  fact  added  and  one  fact  omitted. 

On  the  facts  now  submitted  for  our  consideration,  we  are  of 
opinion  the  plaintiff  is  entitled  to  recover. 

A  sale  in  a  case  of  this  kind  by  a  decree  of  a  court  of  equi- 


DECEMBER  TERM,  1860.  231 

Williams  v.  Council. 

ty  is,  in  effect,  a  sale  by  the  owner  of  the  land,  through  the 
agency  of  the  court ;  /Smith  v.  Brittain^  3  Ired.  Eq.,  351. — 
So,  our  case  is  the  same  as  if  Benjamin  AVilliams  had,  in  1834, 
contracted  to  sell  the  land  to  Tyson,  who  entered  under  Wil- 
liams, and  held  possession  by  virtue  of  the  contract.  Tyson's 
possession,  consequently,  was  not  adverse  at  its  commence- 
ment, and  the  question  is,  did  any  thing  take  place  afterwards 
to  make  it  adverse. 

1.  On  tlie  9th  of  January,  1841,  it  is  admitted  Tj^son  was 
in  possession,  under  the  contract  of  sale.  At  that  date  he  took 
a  deed  for  the  land,  from  Burroughs,  who  was  not  authorised 
to  make  it.  So  the  title  did  not  ]5ass  out  of  Williams,  and 
the  deed  was  but  color  of  title.  There  certainly  is  no  princi- 
ple on  which  tlie  fact  of  taking  the  deed  could  alter  the  char- 
acter of  Tyson's  posscBsion.  He  had  color  of  title,  but  his 
possession  was  not  adverse. 

2.  On  tlie  9th  of  February,  1841,  Tyson  executed  to  Rob- 
erts a  deed  of  trust,  to  secure  the  payment  of  certain  credi- 
tors, but  he  continued  in  possession.  There  is  no  principle  on 
which  the  fact  of  his  making  tliis  deed  of  trust,  could  alter 
the  character  of  his  possession.  Suppose  the  effect  of  this 
deed  was  to  pass  his  color  of  title  to  Roberts,  and  as  between 
them,  to  make  him  hold  under  Roberts,  still  he  was  not  there- 
by relieved  from  his  obligation  to  Williams,  and  having  en- 
tered under  him  and  lield  possession  for  him,  there  was  noth- 
ing he  could  do,  or  say,  so  long  as  he  continued  the  i)ossession 
thus  acquired,  to  make  his  possession  adverse,  without  the 
concurrence  of  Williams,  or  some  act  done  by  Williams  to 
put  an  end  to  the  relation  which  existed  between  them.  If 
he  wished  to  assume  an  adversary  position,  he  could  only  have 
effected  it  by  surrendering  back  the  possession.  Our  ordinary 
notion  of  fairness  shows  that  this  must  be  so.  .As  against 
Roberts,  Tyson  was  entitled  to  a  resulting  trust,  after  satisfy- 
ing the  debts  secured  in  the  deed  of  trust,  and  as  against 
Williams  he  had  an  equity,  on  paying  the  purchase  monej^  to 
call  for  the  legal  title,  but,  iu  the  mean  time,  he  was  holding 


901  IN  THE  SUPEEME  COURT. 

Williams  v.  Council. 

under  and  for  Williams.      Taylor  v.  Gooch,  4  Jones,   436. 

4.  In  1842,  Tyson  contracted  with  William  Watson  to  sell 
the  land  for  $3500,  to  be  paid  out  of  the  trust  estate  of  Wat- 
son's wife,  and  when  the  purchase  money  was  paid,  he  agreed 
to  make  the  title  to  Cox,  in  trust  for  Mrs.  Watson.  "  Watson, 
thereupon,  entered  into  possession  as  the  tenant  of  Tyson^  and 
remained  in  possession  until  March,  1853,  when  he  left  with- 
out giving  up  the  230ssession  to  any  one."  Here  then  is  Wat- 
son taking  possession  under  Tyson,  and  holding  as  his  tenant, 
and  Tyson  bound  to  hold  for  Williams ;  of  course,  Watson's 
possession  being  the  possession  of  Tyson,  could  not  be  adverse 
to  Williams. 

So,  upon  the  facts  before  us,  there  was  no  possession  adverse 
to  Williams,  until  after  March,  1853.  This  action  was  com- 
menced December,  1857  ;  consequentlj^,  his  title  conkl  not 
have  been  divested  by  the  color  of  title  in  Tyson  or  Roberts, 
as  there  was  only,  at  most,  some  five  years  adverse  possession, 
a,nd  it  is  unnecessary  to  pursue  the  matter  further.  • 

What  would  have  been  the  result,  had  the  fact  that  in  1845 
Williams  commenced  an  action  of  ejectment  against  Watson 
been  put  in  evidence,  we  are  not  at  liberty  to  sa3^  Did  he, 
thereby,  put  an  end  to  the  congeable  relation  previously  ex- 
isting between  himself  and  Tyson  and  Watson,  so  as,  by  his 
own  act,  to  make  the  possession  adverse, "as  when  a  bailor 
makes-a  demand  of  the  bailee,  and  the  bailee  refuses  to  give 
up  the  thing  bailed  ?  or  did  the  obligation  imposed  on  Tyson 
and  his  tenant  to  hold  possession  for  Williams,  still  continue? 
These  are  questions  into  which  we  will  not  enter. 

The  record  does  not  present  this  as  a  "  case  agreed,"  so  as 
to  authorise  this  Court  to  give  judgment  for  the  plaintiff. 

Per  Cukiam,        Judgment  reversed,  and  a  venire  de  novo. 


DECEMBER  TEUM,  1860.  233 


Buis  V.  Arnold. 


A.  W.  BUIS  V.  S.  S.  ARNOLD  AND  E.  C.  COOLEY. 

Where  the  prhicipal  obhgor  in  a  ca.  sa.  bond  was  called,  and  failing  to  ap- 
pear, judgment  was  rendered  against  his  surety,  it  was  held  that  the 
fact,  that  the  principal  was  sick  and  unable  to  attend  at  the  term  for  which 
he  was  bound,  did  not  entitle  the  surety  to  a  certiorari  to  have  the  case 
removed  into  the  Superior  Court. 

Tins  was  a  ]ietition  for  a  ckhtiorart,  heard  before  Dick,  J.,  ' 
at  Fall  Term,  18G0,  of  Eowan  Superior  Court.  Tlio  petition 
discloses  the  following  state  of  facts  :  The  defendants,  Arnold 
and  Cooley.  recovered  a  judLniicnt  in  the  County  Court  of 
Rowan,  against  one  Wilson  AYillianis,  upon  which  judgment, 
a  ca.  sa.  issued  against  him,  and  the  petitioner,  Ruis,  became 
surety  upon  the  ca.  sa.  bond,  which  bond  was  returnable  to 
August  Term  of  the  Court.  At  that  term,  the  cause  was  con- 
tinued to  November  Term,  at  which  last  mentioned  term,  the 
principal,  Williams,  being  called,  and  failing  to  appear,  judg- 
ment was  rendered  against  the  petitioner  upon  the  ca.  sa. 
bond.  It  was  proved  by  the  deposition  of  Williams'  wife, 
tliat  he  was  conlined  to  his  bed,  by  sickness,  during  the  whole 
of  November  term  of  Rowan  county  court.  Williams  lived 
in  Charlotte,  where  he  was  during  his  sickness.  Upon  the 
hearing  of  the  petition,  and  upon  consideration  of  tiie  case  of 
Oshorne  v.  Tooiiiei\  0  Jones'  Rep.  440,  the  Court  was  of  opin- 
ion with  the  defendants,  and,  accordingly,  dismissed  the  peti- 
tion.    Petitioner  appealed. 

Boyden,  for  the  petition ci". 
Blachner^  for  the  defendants. 

Baitle,  J.  The  case  of  Bctts  v.  FranJdhi,  4  Dev.  and 
Bat.  Rep.  465,  is  a  direct  authority  in  support  of  the  order  of 
the  Superior  Court  dismissing  the  certiorari.  In  that  case, 
the  parties  to  a  ca.  sa.  bond,  conditioned  for  the  appearance 
of  the  principal  obligor  in  the  county  court,  to  take  the  bene- 
fit of  the  act  for  the  relief  of  insolvent  debtors,  were  called, 


^^4  IN  THE  SUPEEME  COURT. 


Buis  V.  Arnold. 


and  failing  to  appear,  judgment  was  entered  against  them, 
and  it  was  held  that  the  sureties  wei-e  not,  upon  the  allega- 
tion of  having  been  prevented,  hy  the  fraud  of  the  plaintiff's 
agent,  from  making  a  surrender  of  their  principal  in  dis- 
charge of  themselves,  entitled  to  the  writ  of  certiorari,  to 
enable  them  to  make  it  in  the  superior  court.  That  case  was 
a  stronger  one  in  favor  of  the  applicants  for  tlie  certiorari, 
than  the  present,  because  the  failure  of  the  principal  obligor 
to  attend  and  surrender  himself,  or  be  surrendered  hy  his 
sureties,  was  alleged  to  have  been  caused  by  the  fraudulent 
conduct  of  the  plaintiti''s  agent ;  and  this  Court  intimated  that 
the  county  court  might,  possibly,  in  such  a  case,  be  author- 
ised to  give  relief  by  vacating  the  judgment.  But  in  tlie  pre- 
sent case,  where  tlie  principal  was  prevented  from  attending 
the  County  Court  by  sickness,  no  such  relief  can  be  given. 
Sickness  of  the  principal  obligor  niay  be  such  as  to  excuse 
his  non-attendance,  and  fnrnisli  a  good  cause  for  the  continu- 
ance of  the  suit,  but  if  lie  and  his  surety  neglect  to  Iiave  the 
suit  continued,  and  a  judgment  be  regularly  entered  up 
against  them,  on  account  of  the  failure  of  the  principal  obli- 
gor to  appear,  it  cannot  be  vacated  at  a  subsequent  term.— - 
Such  was  the  decision  of  this  Court  in  the  recent  case  of  Os- 
hor7ie  V.  Toovier,  6  Jones'  Kep.  440,  in  which  it  appeared  that 
both  the  principal  and  his  surety  were  sick  and  unable,  on 
that  account,  to  attend  the  term  of  the  court,  at  which  the 
judgment  was  rendered.  We  admit  that  the  present  ma}'' 
be  a  hard  case,  and  so  said  the  Court,  was  that  of  Osborne  v, 
Toovier.  But,  "  liowever  hard  the  case  may  be,  the  Court  does 
not  perceive  any  ground,  on  which  the  surety  can  be  reliev- 
ed. Tlie  extreme  sickness  of  the  principal  at  the  time  would 
have  excused  his  non-ap]:)earance,  and  entitled  him  and  his 
surety  to  a  continuance  under  the  10th  section  of  the  statute, 
if  that  had  ap])eared  to  the  Court;  (see  Rev.  Code,  chap.  59, 
sec.  10).  But  that  was  not  made  to  appear,  and,  therefore, 
the  Court  could  not  properly  have  continued  it.  Tiiat  was 
the  fault  of  the  party  ;  for  although  the  sickness  might  have 
excused  the  debtor  for  not  appearing,  and  the  surety  for  not 


DECEMBEIi  TEEM,  1860.  •  235 

Foard  v.   Rail  Road  Company. 

bringii\<i  liim  in,  yet,  it  furiiislied  no  reason  for  not  appearing 
by  attorney,  and  showing,  bj'  witnesses,  their  inability'  to  at' 
tend  in  ])erson.  They  might,  in  tliat  manner,  have  sliown 
their  right  to  a  continuance,  and  having  tailed  in  that,  there 
is  now  no  help  for  him." 

Per  Cukiam,  Judgment  affirmed. 


0.  G.  FOARD  V.  THE  ATLANTIC   AND  NORTH  CAROLINA   RAIL 
ROAD  COMPANY.* 

Where  niacliinery  was  consigned  to  the  agent  of  a  rail-road,  to  be  fonvarded 
to  tlie  planitifl'over  such  road,  and  it  was  negligently  detained  lor  a  time, 
it  was  JieJd  that  the  defendants  were  not  liable  as  common  carriers  for  this 
neglect,  but  only  as  bailees. 

Where  several  pieces  of  macliinei-y  wct-e  shipped  to  the  defendants'  agent  to 
be  forwarded  to  plaiiUiO',  and  they  were  described  in  the  bill  of  lading  as 
"three  pipes  in  one  bundle,  and  two  single  pipes,"  and  they  were  deliver- 
ed by  the  ship's  ngmU  to  the  defendants'  agent,  who  had  a  copy  of  the  bill, 
and  by  some  means,  the  direction  on  one  of  the  single  pipes  became  illegi- 
ble, and  it  was  not  forwarded,  it  was  ?iehl  that  these  facts  were  suilicient 
to  subject  the  defendant  for  negligence  as  a  bailee 

Where  a  part  of  a  machinery  was  consigned  to  defendant  as  plaintiCf's  agent, 
to  be  forwarded  to  him,  and  defendant  negligently  detained  it,  whereby 
the  whole  machinery  was  kept  idle,  it  was  held  that  the  measure  of  dam- 
ages was  not  what  might  have  been  made  by  the  machinery  during  the 
time  it  was  idle,  but  the  legal  interest  on  the  capital  invested,  the  price  of 
the  hire  of  hands  necessarily  unemployed  during  the  time,  the  cost  of  send- 
ing for  the  missing  machinery,  and  all  other  damages  that  resulted,  neces- 
sarily, from  defendant's  negligence. 

Tins  was  an  action  on  the  cask,  tried    before    Osbokne,  J., 
at  .Spring  Term,  1860,  of  Rowan  Superior  Court. 

♦Judge  ^L^nly  being  a  stockholder  in  the  rail-road  company,  took  no  part 
in  the  decision  of  this  case. 


^6' 


IN  THE  SUPREME  COURT. 


Foard   v.  Rail  Road  Company. 


The  plaintiff,  M'ho  was  tlie  owner  of  a  steam  flouring  mill 
in  the  county  of  Rowan,  declared  against  the  defendants  as 
common  carriers  upon  the  custom,  and  for  negligence  as  bai- 
lees, in  failing  to  forward  a  piece  of  machiner}'^,  to  wit,  a  large 
steam  pipe,  whereby,  and  in  consequence  of  which  neglect, 
his  mill  was  delayed  in  its  operations,  and  he,  thereby  depriv- 
ed of  its  profits. 

The  following  bill  of  lading  was  exhibited,  in  evidence. 

"  Shipped,  in  good  order  and  well  conditioned,  by  Dibble 
&  Bunce,  on  board  the  Schooner  called  tlie  Howard,  whereof 

is  master  for  this  voyage,  now  lying  in  the  port  of  New 

Yoi'k,  bound  for  New  Berne,  N.  C,  to  say  : 

j     "Three  pipes  in  one  bundle,  two  single  pipes 
O.  G.  Foard  'marked  and  numbered  as  in  tlie  margin  ;  to  be 


Salisbury, 


delivered  in  the  like  good  order  and  condition, 
at  the  port  of  New  Berne,  N.  C,  (the  dangers 
of  the  seas,  only  excepted)  unto  Atlantic  ifc 
N.  C,  Rail  Road  agent,  or  to  his  assigns,  he  or 
they  paying  freight  for  the  said  articles  as  cus- 
tomary, with  primage  and  average  accustom- 
ed. In  witness  whereof,  the  master  or  purser 
of  the  said  vessel  hath  affirmed  to  three  bills 
of  lading  all  of  this  tenor  and  date  :  one  of 
which  being  accomplished  the  others  to  stand 
void. 

Dated  in  New   Yoi-k   the   15th  day  of  Sep- 
tember, 1858.     Per  Master. 

E.  Holmes." 

It  was  proved,  by  one  Taylor,  that  the  Schooner  Howard 
an-ived  at  New  Berne  on  the  19tli  of  September,  1858,  and 
he,  in  pursuance  of  gerieral  instructions  given  him  by  the 
agent  of  the  rail  road,  put  the  goods  on  board  of  a  dray  and 
sent  them  to  rail  road  depot,  and  that  he,  Taylor,  was  the 
known  agent  of  the  master  and  owners  of  the  Schooner  How- 
ard, and  resided  in  the  town  of  New  Berne.  It  was  further 
proved  that  all  the  articles  were  forwarded  to  the  plaintiff, 
except  one  of  the  single  pipes,  which  was  a  large  one,  seven 
feet  long,  on  which  the  direction  had  been  obliterated,  so  that 
no  part  of  it  was  at  first  legible,  but  that  by  rubing  it  with  a 


DECEMBER  TERM,  1860.  237 

Foard  v.  Eail  Road  Company. 

rag,  saturaied  witli  oil,  the  word  "  Salisbury"  could  be  read. 
The  agent  of  the  rail-road  swoi'C  that  the  pipe  in  question  was 
not  forwarded,  because  ho  could  not  tell  to  whom  it  belonged. 
Mr,  Fisher,  the  agent  of  the  plaintilF,  swore  that  on  the  22d 
of  September,  aforesaid,  he  received  notice  from  plaintiff  that 
the  pipe  had  not  come  to  hand,  and  directions  to  enquire  for 
it ;  that  he  went  on  the  same    day    to   the    depot,  and   made 
known  his  instructions  to  the  agent  of  the  depot,  who  inform- 
ed him  that  he  knew  nothing  about  it.     lie  was  directed    to 
call  in  the  morning,  when    another   agent,  the   regular   one, 
would  bo   at  home;  that  he  did  call,  and  looked  at   the  pipe 
in  question,  and   saw  others,  but  neither   he   nor   the    agent 
could   ascertain    to    whom    it    belonged,  and  that  no  further 
search  was  made  on  either   of  these   occasions.     Mr.    Taylor 
also  swore,  that  if  he  had  been  applied  to  at  any  time  after 
the  delivery  of  the  articles  at  the  depot,  he  could  have    iden- 
tified the  one  spoken  of,  as  the  property  of  Mr.   Foard.     Mr. 
AlilricJi^  Machinist,  swore,  that,  on  the  29th   of  October  en-  . 
suing,  he  went  to  the  depot  of  the  defendants  at  New  Bern-e, 
in  search  of  the  missing  pipe,  and  found  it  lying  in  the  depot, 
and  knew  it  immediately.     lie  said  he  knew  the  article  from 
the  number  and  description  mentioned  in  the  bill  of  lading, 
produced  by  the  agent  of  the  depot,  and  from  his  knowledge 
of  the  article  wanted ;  that  the  pipe  in  question,  was  a   very 
important   part   of   the   machinery,  without  which    the    mill 
could  not  go  at  all,  and  for  the  want  of  which,  it  M'as  stopped 
for  six  weeks.     lie  further  swore  that  he  did  not  believe  that 
such  an  article  could  be   supplied,  nearer   than   the   city   of 
Isew  York,  and  that  he  took  possession  of  it,  and  carried  it 
to  the  mill  immediately  upon  his  finding  it.     The  counsel  for 
the  defendant,  asked  the  Court,  to  charge  the  jurj-,  that  if  the 
missing  pipe  could  have  been  supplied,  it  was  the  duty  of  the 
plaintiff  to  have  got  another  pipe,  and  that  he  was  not  enti- 
tled to  recover  for  the  stoppage  of  his  business,  for  any  longer 
time  than  he  could  have   sent   and   got   another   pipe.     The 
Court  declined  to  give  the  instruction,  but  charged  the  jury 
that  the  rule   of   damages   was  the  nett  profits  of  the  mill 


urn  IN  THE  SUPREME  COURT. 

Foard   v.  Rail  Road  Company. 

wbicli  had  been  lost  by  the  delay  in  getting  the  pipe.     De- 
fendant excepted. 

On  the  trial,  the  question  of  defendants'  liability  in  point 
of  law,  was  reserved  b}'^  his  Honor,  with  leave  to  set  aside  the 
verdict,  in  case  plaintiif  shonld  get  one,  and  enter  a  nonsuit. 
Verdict  for  plaintiif.  Afterwards,  on  consideration  of  the 
question  of  law,  His  Honor,  being  in  favor  of  the  defendant, 
ordered  the  verdict  to  be  set  aside,  and  a  nonsuit  entered. — • 
Plaintiff  appealed  to  this  Court.  The  defendant  also  appeal- 
ed, on  his  exception  as  to  the  measure  of  damages. 

Jones  and  Love^  for  plaintiff. 
Boyden,  for  defendant. 

Battle,  J.  Upon  the  trial,  it  seems  to  have  been  conce- 
ded, that  the  defendants  were  not  liable  as  common  carriers, 
for  their  neglect  to  send  on,  in  proper  time,  the  pipe  in  ques- 
•tion.  It  was  decided  in  the  case  of  Boner  dh  Christ  v.  T/ie 
Merchants'  Steam  Boat  Company^  1  Jones'  Rep.  211,  that  a 
company,  Avhose  ordinary  business  was  to  transport  goods  by 
water  for  freight,  was  not  bound,  as  to  the  time  of  delivery,  as 
common  carriers,  but  as  mere  bailees  for  hire  ;  and  we  think 
the  same  rule  must  be  applied  to  a  company,  which  carries 
goods  for  freight  on  a  rail-road.  The  rule  of  negligence,  in  such 
cases,  makes  the  bailee  bound  for  ordinary  care,  and,  of  course, 
makes  him  responsible  for  ordinary  neglect.  Applying  this 
rule  as  a  test  to  the  facts  of  this  case,  we  differ  from  his  Hon- 
or in  the  Court  below,  as  to  the  result.  It  is  our  decided 
opinion  that  the  agent  of  tlie  company  was  guilty  of,  at  least, 
ordinary,  if  not  gross  neglect  in  forwarding  the  l)ipe  to  the 
defendant.  It  was,  under  instructions  from  the  agent,  put  on 
a  dray,  together  with  another  single  pipe,  and  a  bundle  of 
three  pipes,  to  be  carried  to  the  compan^-'s  depot.  When  it 
arrived  there,  it  was,  or  ought  to  have  been,  put  with  the 
other  articles  with  which  it  had  come,  as  shown  by  the  bill 
of  lading.  If  it  had  been  so  placed,  the  agent,  who  had  been 
furnished  with  the  bill  of  lading,  would  not  have  left  it  be- 


DECEMBER  TERM,  1860.  239 

Foard   v.  Rail  Road  Company. 

hind  when  he  sent  on  the  other  articles.  A  man  of  ordinary 
prudence,  in  the  management  of  his  own  affairs,  would  not 
have  permitted,  while  he  had  the  bill  of  lading  in  his  own 
hands,  one  pipe  to  be  separated  from  the  others,  and  would 
not,  therefore,  have  neglected  to  send  them  on  as  he  had  receiv- 
ed them,  all  togethei'.  Besides,  when  he  learned  that  one 
of  the  articles  had  not  been  forwarded,  he  would  have  applied 
to  the  ship's  agent  to  assist  him  in  finding  it  out,  as  soon  as  he 
ascertained  that  there  was  some  difficulty  in  identifying 
it.  Mr.  Fisher^  the  plaintiff's  agent,  had  no  other  means  of 
ascertaining  Avhich  it  was,  than  an}'  other  person,  but  Mr. 
Taylor^  the  ship's  agent,  had ;  and  lie  testified  that,  if  he  had 
been  applied  to,  he  could  easil}'  liave  pointed  it  out,  so  that 
the  greater  part  of  the  delay  might  have  been  avoided. 

Asa  verdict  was  taken  for  the  plaintiff,  subject  to  the  opin- 
ion of  the  Court,  as  to  the  legal  liability  of  the  defendant,  we 
might,  upon  reversing  his  Honor's  opinion  as  to  that  ques- 
tion, direct  a  judgment  to  be  entei-ed  upon  the  verdict  for 
the  plaintiff,  but  for  the  objection  of  the  defendant  to  his 
Honor's  ruling  upon  the  question  of  damages.  Upon  that 
question,  we  also  differ  from  his  Honor.  When  he  made  the 
decision,  we  presume  that  the  case  of  Boyle  v.  Recder^  1  Ire. 
Rep.  607,  was  not  called  to  his  attention.  That  was  a  case 
where  the  plaintiff  declared  for  the  breach  of  a  covenant,  in 
which  the  defendant  had  bound  himself  to  furnish  machinery 
for  a  steam  saw  mill,  by  a  stipulated  time.  He  claimed,  as 
damages,  tlie  estimated  value  of  iUq  jrrofit'^^  which  he  alleged 
that  he  might  have  made,  if  the  covenant  had  been  complied 
with.  The  Court  said,  through  Ruffin,  C.  J.,  who  delivered 
their  opinion,  that  "very  certainly  damages  are  not  to  be 
measured  by  any  such  vague  and  indeteiuninate  notion  of 
anticipated  and  fancied  profits  of  a  business  or  adventure, 
which,  like  this,  depends  so  much  on  skill,  experience, 
good  management  and  good  luck,  for  success.  That  would 
make  the  defendant  an  insurer  against  losses  from  any 
cause,  in  a  business  of  hazard,  and  even  against  the  plain- 
tiff's w:mt  of  management.     The  trains  of  tiie  business  the 


^  IN  THE  SUPREME  COURT. 


♦ 


Ashe  V.  DeRosset. 


plaintiff  miglit  liave  done,  or  probal)ly  would  have  done, 
cannot  be  correctly  estimated ;  and,  therefore,  evidence 
offered  with  a  view  of  estimating  them,  as  the  standard  of 
damages,  was  properly  excluded,  as  being  irrelevant,  and 
tending  to  mislead  the  jury."  The  proper  measure  of  dama- 
ges, the  Court  said,  was  to  give  the  plaintiff  "  a  fair  rent  for 
the  time,  or  compensation  for  the  capital  invested  and  lying 
idle."  This  rule,  we  think,  will  apply  to  the  present  case, 
and  being  one  which  M-e  find  to  have  been  adopted  by  this 
Court,  after  full  consideration,  we  feel  no  inclination  to  dis- 
turb it.  In  our  opinion,  then,  the  plaintiff  will  be  entitled  to 
recover  from  the  defendant,  on  another  trial,  a  compensation 
for  his  capital  invested,  while  it  was  lying  idle  for  the  want 
of  the  pipe  not  forwarded  in  pro])er  time,  that  is,  the  legal 
interest  on  such  capital,  also  for  any  workmen  or  hands  ne- 
cessarily unemployed  for  the  same  cause,  and  also  for  the 
expenses  of  sending  the  machinist  after  the  missing  pipe ; 
besides  any  other  damages,  which  were  the  direct  and  neces- 
sary result  of  the  defendant's  negligence. 

The  effect  of  the  error,  committed  by  his  Honor,  in  respect 
to  the  question  of  damages  is,  that  the  judgment  must  be  re- 
versed, and  a  'venire  de  novo  awarded. 

Per  Cueiam,         Judgment  reversed,  and  a  venir^e  de  novo. 


WILLIAM  S.  ASHE  v.  ARMAND  J.  DEROSSET,  AdmW. 

Where,  in  a  suit  for  the  loss,  by  fire,  of  a  quantity  of  rice,  deposited  at  a  mill 
to  be  beaten,  it  was  proved  that  the  general  custom  of  the  mill  was  to  give 
a  receipt  to  the  owner  of  the  rice  delivered,  expressing  the  quantity  and 
the  terms  of  deposit,  it  was  held,  in  the  absence  of  proof  that  the  custom 
was  departed  from  in  this  particular  instance,  that  there  was  a  presumption 
that  such  a  receipt  was  delivered  to  the  plaintiff. 


DECEMBER  TEEM,  1860.  241 

Ashe  V.  DeEosset. 

Where  a  receipt  was  given,  on  the  delivery  of  a  quantity  of  rice  at  a  mill, 
setting  forth  the  quantitj'  and  terms  of  deposit,  it  was  held,  in  an  action 
for  the  loss  of  the  rice  by  fire,  that  the  plaintiff  could  not  resort  to  proof 
of  the  quantity  aliunde,  without  proof  of  his  inability  to  produce  the  re- 
ceipt. 

Where  the  owner  of  a  rice  mill,  who  had  a  turn  at  his  own  mill,  agreed  to 
let  a  customer  have  it,  and  there  is  no  particular  inducement  shown,  or  oth- 
er explanation  given,  it  was  held  that  the  agreement  was  a  nudum  pactum. 

Where  the  owner  of  rice,  which  had  been  burned  at  a  mill,  went  to  a  part- 
ner, who  was  not  cognizant  of  the  state  of  the  business,  and  demanded  a 
given  quantity  of  rice,  to  which  he  replied,  that  "  it  Avas  nothing  more  than 
he  expected,"  it  was  held,  that  this  was  no  admission  as  to  thejpantity. 

Where  a  verdict  was  rendered  for  more  than  the  amount  claimed  in  the  writ, 
in  a  case  where  the  measure  of  damages  was  certain,  and  there  was  no 
certain  creterion  by  which  to  show  a  mistake  or  misapprehension,  it  was 
held  not  proper  to  allow  an  amendment  of  the  writ. 

xicTioN  of  AssoirsiT,  tried  before  Fkench,  J.,  at  the  last 
Fall  Term  of  New  Hanover  Superior  Court. 

The  plaintiff  declared  in  two  counts. 

1st.  For  the  loss  of  2300  bushels  of  rice,  which  was  destroy- 
ed by  lire  by  the  negligence  of  the  defendant. 

2ndly.  On  a  special  contract,  that  the  plaintiff  should  have 
the  turn  of  the  defendant,  at  the  defendant's  rice  mill,  by  a 
breach  of  which,  the  rice  of  the  plaintiff  was  destroyed  by 
fire. 

It  was  proved  that  Potter  and  "Wade  were  partners. 

James  Pettiway  testified,  that  Wade  was  the  active  part- 
ner and  superintended  the  mill.  The  mill  was  burned  in 
February,  1814.  In  October,  1844,  at  the  request  of  plain- 
tiff, he  demanded  of  Potter  2300  bushels  of  rice,  to  which  the 
latter  replied,  "it  was  nothing  more  than  he  expected." 

TJwmas  J).  Heaves  testified,  that  the  custom,  at  the  mill, 
was,  that  each  planter  had  a  turn  at  the  mill,  of  1500  bushels, 
and  to  secure  this,  a  deposit  of  200  or  250  bushels  was  neces- 
sary ;  that  on  the  morning  after  the  fire,  he  had  a  conversa- 
tion with  Wade,  and  he  said  that  he  (witness)  had  in  the  mill, 
at  the  time  of  the  fire,  1300  or  1400  bushels,  and  that  plain- 

16 


242  HSr  THE  SUPREME  COURT. 

Ashe  V.  DeRosset. 

tiff  had  lost  much  more  than  that,  and  that  Potter  had  lost 
about  15,000  bushels. 

Plaintiff's  counsel  asked  witness,  what  Wade  said  as  to  the 
cause  of  the  fire.  The  defendant's  counsel  objected  to  the 
question,  but  the  objection  was  over-ruled,  and  defendant 
excepted. 

The  witness  proceeded  ;  that  Wade  said  the  fire  originated 
from  the  journals,  and  that  these  were  of  wood,  and  were  on 
the  upper  floor ;  that  Wade  said  further,  he  was  in  the  habit 
of  going  over  the  mill  every  night  to  see  that  all  was  right 
before  closing,  but  on  the  evening  before,  he  had  neglected  to 
do  so,  as  he  was  much  fatigued  ;  that  the  journals,  as  he  said, 
had  caught  on  fire  before.  He  further  stated,  that  Wade  was 
mistaken  as  to  the  quantity  he  (the  witness)  had  in  the  mill, 
for  that  it  was  only  800  or  900  bushels  ;  that  clean  rice  was 
worth,  at  that  time,  $2,25  a  $2,75  per  100  lbs.,  and  rough  rice 
about  one-fourth  as  much ;  that  the  general  custom  was  to 
give  receipts,  and  that  the  rice  was  at  the  risk  and  control  of 
the  owner  ;  that  this  was  expressed  in  the  receipt. 

The  counsel  of  the  defendant  read,  in  evidence,  a  notice  serv- 
ed on  the  plaintiff,  to  produce  the  receipt  he  had  received 
from  the  mill  for  the  rice  deposited. 

The  defendant  was  a  rice  planter,  and  was  entitled  to  his 
turn  in  the  mill.  The  toll  charged  for  beating  was  10  per 
cent.  This  mill  was  run  by  steam  power.  The  principal  risk 
in  mills  of  this  kind  is  from  fire.  The  wooden  journals  are 
liable  to  take  fire  if  neglected.  Mr.  Quince  testified,  that  he 
had  been  familiar  with  rice  mills  for  30  years  ;  that  they  are 
much  subject  to  fire,  and  great  care  has  to  be  used  to  prevent 
fire  ;  that  according  to  the  custom,  in  this  business,  the  rice 
is  at  the  risk  of  the  owner,  and  subject  to  his  control ;  that  it 
was  usual  to  make  a  small  deposit  at  the  mill  to  secure  a 
"  turn"  and  just  before  it  came  round  to  deposit  the  remain- 
der, say  1500  bushels  ;  this  course  was  pursued  on  account  of 
the  danger  of  fire  ;  that  the  owner  of  a  mill,  if  a  planter,  had  a 
turn. 

Stanton  Spooner  testified,  that  he  was  employed  in  the  mill 


DECEMBER  TERM,  1860.  243 

Ashe  V.  DeRosset. 

at  the  time  the  tire  occuiTed  ;  that  there  was  no  negligence  ; 
that  on  the  evening  before  the  fire,  on  closing  the  work  of  the 
da}^  AVade  went  through  the  mill  and  carefully'-  examined  the 
mill,  and  saw  that  ever}'  thing  was  right ;  that  Potter  did 
give  Asiie  one  turn,  and  that  Ashe  only  had  about  500  bush- 
els of  rice  in  the  mill  when  the  fire  occurred ;  that  it  was  the 
uniform  custom  to  give  receipts  to  persons  bringing  rice  to 
the  mill,  expressing  the  quantity  and  the  terms  on  which  the 
rice  was  received. 

The  counsel  for  the  defendant,  contended  that  the  contract 
to  give  the  plaintiff  his  turn  at  the  mill,  was  but  a  nvdmn 
pactum^  also  that  the  non-production  of  the  receipt,  given  by 
the  mill-owner,  to  the  plaintiff,  created  a  presumption  against 
liis  claim.  The  Court  declined  giving  tlie  instruction  asked, 
upon  the  ground,  in  the  latter  instance,  that  there  was  no  ev- 
idence that  such  receipt  had  come  to  the  hands  of  the  plain- 
tiff".    Defendant's  counsel  excepted. 

The  Court  charged  the  jury,  that  if  they  were  satisfied  that 
there  was  a  contract  that  the  defendant  was  to  give  his  turn, 
and  that  this  agreement  was  made  in  contemplation  of  the  im- 
minent risk  of  fire,  and  the  defendant  did  not  give  his  turn  and 
his  rice  was  destroyed  by  fire,  then,  the  plaintiff*  was  entitled 
to  recover  the  value  of  the  rice  destroyed.  If  they  found  that 
the  contract  was  made,  not  in  contemplation  of  the  imminent 
risk  of  fire,  and  there  was  a  breach  of  it,  and  the  plaintiff's 
rice  was  destroyed  by  fire,  the  plaintiff  was  entitled  to  nomi- 
nal damages. 

If  they  were  satisfied,  from  the  evidence,  that  beating  rice 
was  attended  with  gi-eat  risk  from  fire,  and  that  the  fire  orig- 
inated in  the  journals,  and  that  the  defendant  did  not  see  that 
all  was  right  before  closing  on  the  night  before  the  fire,  then, 
the  defendant  was  guilty  of  gross  negligence,  and  the  plaintiff 
was  entitled  to  recover  the  value  of  the  rice  destroyed  by  the 
fire.  Defendant's  counsel  excepted  to  the  charge.  Verdict 
for  $2;)30,t>0.  The  writ,  in  the  case,  claimed  damages  to  the 
amount  of  $1500,  but  his  Honor  permitted  the  writ  to  be 


244  IN  THE  SUPREME  COUET. 

Ashe  V.  DeRosset. 

amended  without  costs,  so  as  to  correspond  with  the  verdict, 
and  the  Court  gave  judgment  accordingly. 
Defendant  appealed. 

Person^  Strcmge  and  W.  A.  Wright,  for  the  plaintiff. 
Foide,  for  the  defendant. 

Peakson,  C.  J.  The  case  is  complicated  by  the  fact  that, 
in  respect  to  the  count  against  the  defendant  as  owner  of  the 
mill,  Wade,  who  was  a  partner,  has  a  direct  interest,  being 
liable  to  the  defendant  for  contribution  ;  whereas,  in  the 
other  count  against  the  defendant,  on  his  collateral  individual 
promise,  "to  give  plaintiff  his  turn,"  Wade  had  no  interest. 

The  verdict  being  general,  an  error,  as  to  either  count,  is 
ground  for  a  new  trial,  and  according  to  the  view  taken  of 
the  case,  by  this  Court,  there  are  many  fatal  errors  in  regard 
to  each  of  the  counts. 

FIRST   COUNT. 

1.  His  Honor  was  of  opinion,  that  there  was  no  evidence 
that  "  a  receipt"  for  the  rice  had  ever  come  to  the  hands  of 
the  plaintiff.  There  was  proof  of  a  general  custom,  at  the 
mill,  to  give  a  receipt,  "  stating  the  quantity  of  rice,  and  that 
it  was  at  the  risk  and  under  the  control  of  the  owner,"  when- 
ever rice  was  deliverd.  In  the  absence  of  any  evidence 
showing  that,  for  some  cause  or  other,  the  custom  was  depart- 
ed from  in  the  instance  of  the  plaintiff,  there  -is  a  violent  pre- 
sumption that  he  did  take  "  a  receipt." 

2.  The  purpose  of  these  receipts  was  to  fix  the  quantity  of 
rice,  delivered  at  the  mill,  by  the  respective  customers.  It 
was  what  is  called  in  the  books,  "pre-ordained  evidence,"  that 
is,  evidence  agreed  on  b}^  the  parties,  as  the  mode  of  proof,  in 
respect  to  the  quantity  of  rice,  and  the  terms  on  which  it  was 
delivered — like  a  subscribing  witness  to  a  bond.  In  such 
cases,  this  pre-ordained  evidence  is  not  merely  the  j>rimary, 
but  it  is  the  only  evidence  to  which  either  party  can  resort, 
without  proof  of  his  inability  to  produce  it.  In  the  case  of  a 
subscribing  witness,  the  principle  is  of  every  day's  occurrence; 


DECEMBER  TERM,  1860.  245 

Ashe  V.  DeRosset. 

to  prove  a  bond,  or  other  instrument,  the  subscribing  witness 
must  be  produced  ;  if  that  be  impossible,  then  his  hand-wri- 
ting must  be  proved,  and  the  party  is  not  at  liberty  to  disre- 
gard this  pre-ordained  evidence  and  prove  that  the  obh'gor,  or 
maker  of  the  instrument,  had  admitted  that  he  executed  it,  un- 
less such  admission  be,  what  is  called,  "  an  admission  in  the 
cause,"  made  expressly  for  the  purpose  of  dispensing  with  the 
production  of  the  subscribing  witness. 

According  to  this  principle  of  evidence,  the  plaintiff  ought 
not  to  have  been  allowed  to  jiroceed  with  his  ease  by  attempt- 
ing to  show,  aliunde^  the  quantity  of  rice,  until  proof  was 
made,  on  his  part,  of  his  inability  to  produce  the  receipt.  In 
this  case,  out  of  abundant  caution,  tlie  defendant  had  given 
him  notice  to  produce  it,  and  still,  he  was  allowed  to  proceed 
and,  in  effect,  attempt  to  prove  the  contents  of  the  receipt,  to 
wit,  the  number  of  bushels  of  rice  that  he  had  delivered  at 
tlie  mill. 

3.  His  Honor  was  of  opinion  that  the  demand  for  2300  bush- 
els of  rice,  and  the  defendant's  reply,  "  it  was  nothing  more 
than  he  expected,"  was  evidence  of  the  quantity.  Apart  from 
the  considerations,  above  stated,  we  do  not  agree  with  his 
Honor  in  this  view  of  the  evidence.  It  is  very  difficult  to 
draw  a  line  between  slight  evidence  and  no  evidence  at  all ; 
but  taken  in  connection  with  tlie  fact,  deposed  to  by  the  witness, 
Pettkoay^  who  made  the  demand,  and  proves  the  reply,  that 
Wade  was  the  active  partner  and  superintended  the  mill,  (so 
that  the  defendant  could  not  be  supposed  to  know  the  quan- 
tity of  rice  delivered  by  the  customers)  it  seems  to  us  to  be  a 
strained  construction,  to  give  these  words  of  the  defendant  any 
reference  to  the  quantity  of  rice,  and  they  are  fully  satisfied 
when  taken  in  their  ordinary  sense,  to  mean,  that  the  defend- 
ant was  not  surprised,  by  the  fact  of  a  demand  being  made, 
as  preliminary  to  an  action  against  him ;  for  that  the  ijiten- 
tion  of  the  plaintijj-  to  sue  him^  "was  nothing  more  than  he 
expected." 

In  this  connection,  it  is  proper  to  remark,  that,  although 
the  power  of  the  court  to  allow  an  amendment,  after  verdict, 


246  IN  THE  SUPEEME  COUKT. 

Ashe  V.  DeRosset. 

SO  as  to  increase  the  amount  of  damages,  claimed  by  the  writ, 
is  conceded,  still,  in  most  cases,  it  should  be  sparingly  ex- 
ercised. Where,  by  the  long  pendency  of  the  snit,  an  amend- 
ment becomes  necessary,  as  in  ejectment,  where  tlie  terro, 
laid  in  the  demise,  expires,  or  in  debt,  or  in  assumpsit,  where 
the  interest  exceeds  the  damages  laid  in  the  writ,  the  amend- 
ment is  matter  of  couise.  In  actions  where  there  is  no  par- 
ticular measure  of  damages,  as  slander,  assault  and  battery, 
and  new  matter  occui's  to  aggravate  the  offense,  e.  g.,  a  repe- 
tition of  the  slander  after  suit  brought,  or  relying  on  the  plea 
of  justification  where  there  is  no  ground  for  it,  or  where  the 
wound,  inflicted,  takes  a  dangerous  turn,  and  the  plaintiff  is 
likely  to  lose  a  limb,  or  the  like,  the  discretion  of  the  court 
may  be  properly  appealed  to  ;  but  in  actions  where  there  is- 
a  feted  measuTG  of  damnges^  as  in  our  case — the-  value  of  the 
rice,  a  ease  rai-ely  occurs  where  the  purposes  of  justice  re- 
quire the  exercise  of  tiiis  i)ower  ;  for  every  man  is  presumed 
to  know  best  his  own  business,  and  to  claim  al)  that  he  thinks 
he  is  entitled  Xo.  In  such  cases,  this  presumption  ought  to  be 
rebutted,  and  something  offered  for  the  court  to  amend  by  ; 
as  by  the  production  of  the  receipt,  and  showing  thereby, 
beyond  all  question,  a  mistake  in  rega)^!  to  the  quantity  af 
ric«.  The  usual  course,  however,  is  to  allow  the  plaintiff  to 
remit  so  n^uch  of  the  damages  found  as  exceed  the  amount 
claimed,  so  as  to  make  the  verdict  lit  the  writ ;  Qrist  v, 
Hodges,  3  Dev.  203. 

SECC/!NI>   COUNT. 

1.  In  addition  to  the  above,  which  applies  to  both  counts, 
Wade,  the  partner  of  the  defendant  in  the  U'hII,  had  no  inter- 
est in  this  count,  as  it  was  for  the  breach  of  a  collateral  pro- 
mise. So,  he  was  a  competent  witness  for  either  pai'ty,  in 
respect  to  it,  and,  of  course,  his  admissions,  or  declarations, 
were  not  admissible,  as  evidence,  against  the  defendant. — 
There  was  no  test  of  h'uth,  as,  in  this  respect,  they  were  not 
against  his  interest,  and  did  not  tend  to  subject  liim  to  liabil- 
ity;  and  this  produces  the  incongruity  of  joining  the  two 
counts. 


DECEMBER  TERM,  1860.  247 

Ashe  V.  DeRosset. 

2.  The  alleged  promise  of  the  defendant,  was  to  let  the 
plaintiff  have  "  his  turn."  The  witnesses  state  that  a  turn 
was  1500  bushels  of  rough  rice.  So,  under  this  count,  the 
plaintiff  could  not  recover  for  an}'^  larger  amount. 

There  is  no  evidence  of  a  consideration  to  support  the  pro- 
mise. It  was  suggested,  on  the  argument,  that  the  promise 
was  made  by  the  defendant,  in  order  to  induce  the  plaintiff 
to  send  his  rice  to  the  mill,  or  in  order  to  keep  him  from  tak- 
ing it  away,  after  it  had  been  delivered,  as  he  had  a  right  to 
do  by  the  terms  of  tiic  receipt,  and  thus  the  defendant,  be- 
ing a  part  owner  of  the  mill,  had  a  direct  interest.  It  is  true, 
if  the  defendant  made  the  promise  for  either  of  these  purpo- 
poses,  there  would  be  a  consideration  ;  but  we  ai'e  unable  to 
see  any  evidence  of  the  fact,  either  that  the  plaintiff  did  not 
intend  to  send  his  rice  to  the  mill,  or  intended  to  take  it  away, 
and  that  the  promise  was  made  to  induce  iiini  to  change  his 
purpose.  On  the  contrary,  if  permitted  "  to  guess"  about  the 
matter,  we  should  suppose  that  the  promise  was  a  voluntary 
offer  of  kindness,  on  the  part  of  the  defendant,  to  let  the  plain- 
tiff have  his  turn,  in  order  to  accommodate  him,  b}^  enabling 
him  to  get  a  portion  of  his  crop  that  much  sooner  into  market. 

•4.  His  Honor  leaves  it  to  the  jury  to  say,  whether  the  pro- 
mise was  made  "  in  contemplation  of  the  imminent  risk  from 
iire."  There  was  no  evidence  of  this  as  a  matter  of  fact,  and 
this  Court  had  decided,  when  this  case  was  before  it  at  June 
Term,  1858,  (5  Jones'  Rep.  301)  that  it  could  not  be  inferred,, 
from  the  nature  of  the  transaction,  "  that  the  contingency  that 
tlie  rice  might  be  burnt,  if  left  in  tlie  mill,  was  in  contempla- 
tion of  the  parties."  On  what  ground  could  the  jury,  or  any 
one  else,  infer  that  the  defendant  made  the  promise,  because 
he  knew  thei-e  was  great  risk  from  fire,  and  if  any  rice  was  to 
be  burnt,  lie  preferred  that  it  should  be  his  own,  rather  than 
the  plaintiff''s?  !!  Or  that  the  plaintiff'  intended,  and  was 
willing,  in  accepting  the  offer  of  the  defendant's  turn,  to  take 
advantage  of  such  unheard-of  generosity  ? !  So,  notwithstand- 
ing the  opinion  of  the  jury,  as  it  is  a  mere  matter  of  opinion, 


848  m  THE  SUPEEME  COURT. 

Lane  v.  Washington. 

and  there  is  do  evidence  in  regard  to  it,  we  are  disposed  to 
adhere  to  the  opinion  previously  expressed  by  us. 

The  usual  practice  of  this  Court  is,  to  put  its  decision  on 
some  one  point,  presented  by  the  case,  and  to  refrain  from  the 
expression  of  an  opinion,  in  regard  to  others,  that  may  appear 
in  the  record.  This  was  the  course  taken  when  the  case  was 
here  before,  and  the  result  is,  that  it  comes  back  now  with 
more  points  than  ever.  On  which  accounts  we  have  seen 
proper  to  make  an  exception  to  our  usual  practice,  and  to  pass 
on  several  of  the  exceptions,  presented  by  the  record,  with  the 
hope  of  "  lopping  off  some  of  the  points,"  thereby  relieving 
the  next  Judge,  who  tries  the  case,  from  the  embarrassment 
incident  to  the  joinder  of  the  two  counts. 

Per  Curiam,  Judgment  reversed. 


WILLIAM  K.  LAiTE  v.  JOHN  C.  WASHINGTON  &  J.  D.  BURDICK. 

Where  a  plaiutifif  declared  upon  a  special  contract  to  provide  slaves,  hired  to 
work  upon  a  railroad,  with  good  accomodations,  also  on  the  implied  coo- 
tract  of  bailment  to  provide  them  with  ordinary  accommodations,  it  was 
held  that  the  lodging  of  the  slaves,  in  the  dead  of  winter,  in  huts  built  of 
poles  and  railroad  sills,  without  door  shutters,  and  without  chinking  in  the 
cracks,  which  were  large,  and  which  huts  were  proved  to  be  inferior  to 
others  ordinarily  used  for  such  purposes  on  railroads,  was  a  breach  of  the 
contract  as  alleged  in  both  counts,  and  entitled  plaintiff  to  recover. 

Tms  was  an  action  on  the  case,  tried  before  Saundees,  J., 
at  Fall  Terra,  1860,  of  Wilson  Superior  Court. 

The  plaintiff  declared  in  live  counts,  as  follows  : 

1st.  For  a  breach  of  contract  in  taking  the  slaves  Jack, 
George,  Wright,  and  Abram,  below  Bear  Creek. 

2d.  For  a  breach  of  contract  in  not  taking  good  care  of  said 
slaves,  and  furnishing  them  with  good  accommodations. 


DECEMBER  TERM,  1860.  2-i9 


Lane   v.    Washino'ton. 


3d,  For  breach  of  the  implied  contract,  arising  on  the  bail- 
ment, to  take  ordinary  care  of  the  said  slaves. 

4th.  For  the  hire  of  said  slaves,  Wright,  Jack,  and  George, 
nine  days  each,  at  eighty  cents  per  day,  and  for  the  hire  of 
Abram,  six  days,  at  eighty  cents  per  day. 

6th.  For  the  hires  of  said  slaves,  for  the  times  mentioned 
in  the  4th  count,  for  what  they  were  worth. 

The  title  of  the  plaintiff,  to  the  slaves  in  question,  was  ad- 
mitted. The  plaintiff  introduced  one  Raifovd^  who  testified, 
that  prior  to  the  heavy  snow  storm  of  January,  1857,  as  the 
agent  of  the  plaintiff",  he  hired  said  slaves  to  the  defendants, 
who  were  partners  in  a  contract  for  making  the  Atlantic  Rail 
Road,  at  the  rate  of  eighty  cents  per  day ;  that  they  were  not 
to  be  carried  below  Bear  creek,  a  point  on  the  line  of  said 
railroad  ;  that  the  above  contract  was  made  with  the  defen- 
dant Burdick  ;  that  on  the  next  day,  Burdick  told  him  that  he 
wished  to  take  the  said  slaves  below  Bear  Creek,  into  the 
edge  of  Dover  swamp,  below  Kinstou  ;  that  he  (witness)  told 
him  that  if  they  were  well  taken  care  of,  he  would  as  soon 
they  should  work  there  as  any  where  ;  that  Burdick  replied 
that  they  should  be  well  taken  care  of,  as  defendants  had 
good  accommodations  there  for  a  hundred  hands ;  that  he 
(witness)  replied  that  on  those  terms  they  might  go ;  that  the 
slaves  were  carried  oft'  by  Burdick,  on  that  or  the  next  day  ; 
tliat  they  were  gone  some  eiglit  or  ten  days,  when  Wriglit, 
George  and  Jack  came  home  frost  bitten  ;  that  Wright  died 
of  phneumonia,  al)Out  ten  days  thereafter,  and  tlie  other  two 
were  laid  up  about  two  months ;  that  he  never  saw  Abram 
after  the  hiring,  but  learned  that  he  died  in  Kinston  ;  that  this 
was  about  tlie  29th  of  January,  1857,  a  short  time  after  the 
heavy  snow  storm  which  occured  in  that  month.  The  witness 
further  testified  that  during  the  week  succeeding  tiie  return 
of  the  slaves,  he  went  down  to  the  place  where  the  slaves  had 
beeti  at  work,  in  the  edge  of  Dover  swamp  ;  that  he  examin- 
ed the  slianties  erected  by  the  defendants  for  the  accommoda- 
tion of  the  hands ;  that  there  was  one  at  the  Heritage  place, 
where  the  overseer  stayed,  near  where  the  country  road  cross- 


250  IN  THE  SUPREME  COUET. 

Lane  v.   Washington. 

ed  the  railroad,  and  on  the  right  hand  side  of  the  country 
road  going  to  New  Berne  ;  that  this  was  a  square  pen,  made 
of  pine  poles,  with  large  cracks,  throngli  which  one  might 
thrust  his  double  fists,  and  scarcely  seven  feet  high  ;  that 
there  was  no  shutter  to  the  door ;  that  the  top  was  flat  and 
covered  with  plank,  and  that  it  would  not  shed  water ;  that 
there  was  no  chimne}^  and  no  floor,  no  bed  clothing  and  no 
cooking  utensils,  and  that  the  fire  was  made  in  the  middle  of 
the  house.  The  witness  further  swore  that  there  was  another 
shanty,  above  the  Heritage  place,  at  Trace}'' swamp  ;  that  this 
one  was  some  thirt^^  or  forty  feet  long,  and  from  sixteen  to 
eighteen  feet  wide,  built  of  pine  poles;  that  there  were  large 
cracks  between  the  poles  not  half  stopped,  and  loose  planks 
laid  down  for  flooring ;  that  along  the  centre  of  this  cabin, 
and  at  the  distance  of  a  few  feet  from  each  other,  logs  were 
placed  on  the  ground,  and  earth  placed  between  them  as  a  place 
for  building  fires;  that  it  had  no  chimney,  but  instead  there- 
of, there  was  an  aperture,  three  feet  wide,  at  the  top  of  the 
roof,  for  the  escape  of  smoke,  but  that  this  shanty  had  a  door 
to  which  there  was  a  shutter.  Witness  further  stated  that 
there  were  other  shanties  for  the  accommodation  of  the  hands, 
just  below  the  Heritage  place,  at  the  distance  of  a  mile  or  a 
mile  and  a  half;  that  these  latter  were  made  of  cross  ties  or 
sills  of  pine  timber,  eight  feet  long,  and  from  eight  to  ten 
inches  square,  used  in  the  construction  of  the  railroad  track; 
that  these  ties  wei-e  placed  on  top  of  one  another,  to  the 
height  of  some  six  feet,  on  three  sides,  thus  leaving  one  end  or 
side  entirely  open,  that  the  covering  was  also  composed  of  these 
ties,  placed  near  together,  and  he  saw  no  other  shanties 
for  the  accommodation  of  hands ;  that  those  above  describ- 
ed were  nothing  like  as  good  as  are  ordinarily  used  on  works 
of  the  kind,  and  were  nothing  like  as  good  as  an  ordinary 
horse  stable.  Witness  further  stated,  that  he  saw,  during  this 
visit,  at  the  Heritage  place,  one  Parrott^  an  overseer  of  the 
defendants  on  this  work  ;  that  Parrott  told  him  that  if  he  had 
been  well,  the  slaves  in  question  would  have  been  better  at- 
tended to,  "that  it  was  a  bad  chance  there  any  how;"  that 


DECEMBEK  TEEM,  1860.  251 

Lane   v.    Washington. 

PaiTott  also  told  him  that  the  slaves  sta^'ed  "just  below  there," 
pointing  in  the  direction  of  the  shanties  last  described.  The 
witness  t'nrther  stated  that  he  had  seen  other  shanties  on  the 
Wilmington  &  AVeldon  railroad. 

Dr.  C.  t .  Dewey  testified  that  he  Avas  called  to  see  the 
bo3's  George,  Wi-ight  and  Jack,  on  the  21st  of  Jiinuarv,  1857  ; 
tliat  they  were  frost  bitten — George  badly — Wright  not  so  bad- 
ly, and  Jack  slightly  ;  that  Wright  died  in  about  two  weeks, 
of  typlioid  ])nonmoMia,  and  that  he  C()m[)lainod  of  having 
suffered  from  excessive  cold  for  two  weeks.  He  further  sta- 
ted that  the  other  two  would  be  more  liable  to  be  tVost  bitten 
after  this.  Wright  had  no  cold  that  he  could  see,  at  his  first 
visit. 

One  Tiohertson  testified  that  he  had  been  travelling  through 
there  some  time  previous  to  tlie  snow  aforesaid  ;  that  lie  had 
seen  the  cross  tie  shanties,  and  one,  which  he  supposed  to  be 
the  Tracey  swamp  shanty,  which  was  at  the  Heritage  place, 
on  the  right  hand  side  of  the  stage  road,  leading  to  New 
Berne;  that  none  of  the  chinks  were  shut;  that  it  had  no 
chimne}',  and  had  a  flat  roof;  and  that  it  lacked  a  great  deal 
of  being  as  good  as  ordinary,  and  would  be  a  very  poorliorse 
stable  ;  that  these  shanties  were  about  ten  steps  from  the  road, 
and  that  he  had  never  been  nearer  than  this  to  them  ;  that 
the  only  other  shanties  he  had  ever  seen,  for  such  purposes, 
were  on  the  N.  C.  Rail  Road. 

John  0.  Slocumh  stated  the  conversation  between  Raiford 
and  Burdick  to  have  been  as  follows :  ])urdick  said  he  would 
like  to  take  the  slaves  below  Kinston,  into  the  q(\^q  of  Dover 
swamp.  Raiford  asked  if  they  had  good  accommodations. 
Burdick  replied,  yes,  for  a  hundred  hands.  Raiford  replied  if 
the  accommodations  were  good,  and  the  hands  would  be  well 
taken  care  of,  he  M'onld  let  them  go. 

Another  witness  testified  to  the  same  conversation,  giving 
as  Raiford's  last  reply,  that  he  did  not  wish  the  hands  so  far 
from  home,  but  would  not  object  to  their  going  down  for  two 
or  three  weeks,  provided  the  accomodations  were  good. 

William  0.  Loftin  testified  that  he  lived  in  Dover,  about 


252  IN  THE  SUPREME  COURT. 

Lane   v.    Washington. 

four  miles  below  the  Heritage  place,  and  liad  seen  these  shan- 
ties ;  that  he  had  never  seen  any  as  poor,  (sorry)  any  where 
else,  and  that  they  were  not  as  good  as  an  ordinary  stable  ; 
that  the  Tracey  swamp  shanty,  on  the  west  side  of  tlie  swamp, 
had  a  roof  with  an  opening  along  the  top,  some  three  feet 
wide,  that  it  had  large  cracks,  was  made  of  pine  logs,  and 
was  twenty  five  or  thirty  feet  long,  and  fifteen  or  eighteen 
feet  wide ;  that  the  cross  tie  shanties  were  about  a  mile  and 
half  below  the  one  just  described  ;  that  he  had  four  negroes 
in  the  defendants  employment,  who  stayed  at  these  shanties, 
and  that  two  of  them  were  frost  bitten,  though  he  had  heard 
that  one  of  them  had  fallen  into  a  ditch,  and  remained  there 
some  time ;  that  at  the  time  of  the  snow  storm,  the  hands  of 
defendants  were  at  work  on  the  road,  a  quarter  of  a  mile  be- 
low the  Heritage  place,  in  the  edge  of  Dover  swamp.  On 
•cross  examination  he  stated  that  these  shanties  did  not  de- 
serve the  name.  He  further  stated,  that  the  only  other  build- 
ings of  a  like  nature  he  had  ever  seen  was  as  he  passed  along 
the  line  of  railroads  after  their  completion,  and,  also,  that  he 
•did  not  examine  these  shanties  till  after  this  suit  began.  He 
further  stated,  that  the  defendants  had  no  other  accommoda- 
tions for  hands,  at,  or  near  the  edge  of  the  swamp.  He  also 
stated  that  the  Tracey  swamp  shanty  could  not  be  seen  from 
the  stage  road,  so  as  to  be  examined,  and  that  he  did  not  go 
near  enough  to  it,  to  see  how  the  logs  were  laid  for  building 
the  fire,  or  how  the  planks  were  laid  for  sleeping. 

None  of  the  witnesses  knew  whether  the  slaves  in  question 
had  remained  at  the  shanties  during  the  snow,  nor  when  they 
had  left  the  employment  of  the  defendants,  nor  which  of  the 
shanties  they  occupied,  except  from  the  conversation  between 
Raiford  and  Parrott. 

The  defendants'  counsel  was  proceeding  to  state  the  defence, 
when  his  Honor  announced  that  he  should  instruct  the  jury, 
tliat,  upon  the  plaintiff's  own  evidence,  there  was  no  breach 
of  the  contract  declared  on  in  the  1st,  2d  and  3rd  counts,  and 
no  want  of  ordinary  care.  That  on  the  4th  count,  there  was 
a  special  contract  of  hiring,  and  the  plaintiflT  was  entitled   to 


DECEMBER  TERM,  1860.  253 

Lane  v.    Washington. 

recover,  at  the  rate  of  eight}^  cents  per  day,  for  each  slave 
while  in  the  defendants  employment,  if  the  witnesses  were  to 
be  believed.  The  case  was  then  pnt  to  the  jnry,  wlien  his 
Honor  charged  them  as  above  set  forth.  Plaintiff  excepted 
to  this  charge.  The  jury  found  for  the  defendants  on  the  Ist, 
2d  and  3d  counts,  as  also  on  the  5tli,  and  for  the  plaintiff  on 
the  4th,  ($25).  There  was  a  judgment  for  the  plaintiff  for 
$25.00,  from  which  he  appealed  to  this  Court. 

Strong  and  Dorfch,  for  the  plaintiff. 
licliac,  for  the  defendants. 

Battle,  J.  The  second  count  of  the  plaintiff's  declaration 
was  for  a  breach  of  the  contract,  alledged  to  have  been  made 
by  the  defendants,  to  take  good  care  of  certain  slaves,  whom 
tJiey  had  Jiired,  and  to  furnish  them  with  good  accommoda- 
tions. And  the  tliird  was  for  a  breach  of  the  implied  con- 
tract, arising  from  tlie  bailment,  to  take  ordinary  care  of  the 
slaves.  Upon  the  testimony  given  on  the  part  of  the  plaintiff, 
in  support  of  these  counts,  tlie  presiding  Judge  held  t])at,  tak- 
ing it  to  be  all  true,  it  did  not  prove  a  breach  of  either  of 
them,  and  that,  therefore,  the  plaintiff  could  not  recover  upon 
either  of  them.  The  opinion  of  his  Honor,  expressed  thus 
generally,  in  relation  to  the  testimony  given  by  all  the  wit- 
nesses who  were  examined  for  the  plaintiff,  cannot  be  sus- 
tained, if  any  one  or  more  of  them  testified  to  a  statement  of 
facts,  which  in  law,  made  out  a  case  of  a  neglect  of  the  de- 
fendants to  take  good  care  of,  and  furnish  good  accommoda- 
tions to  the  slaves  in  question,  as  applicable  to  the  second 
count ;  or  of  a  want  of  ordinary  care,  as  applicable  to  the 
third  count. 

A  critical  examination  of  the  statements  of  each  of  the 
witnesses  who  testified  as  to  the  kind  and  condition  of  the 
huts  or  shanties  in  which  the  slaves  were  lodged  at  the  time 
when  they  were  injured,  has  brought  us  to  the  conclusion  that 
at  least  two,  if  not  more  of  them,  prove  a  breach  of  both  the 
counts.  The  only  case  relied  on  by  the  counsel,  for  the  de- 
fendants, in  support  of  his  Honor's  opinion,  is  that  of  Slocumb 


254  IN  THE  SUPKEME  COURT. 

Lane   v.    Washington. 

V.  Washington^  6  Jones'  Rep.  357.  A  reference  to  the  ques- 
tions discnssed  and  decided  in  that  case  will  show  that,  if  it 
does  not  actually  oppose,  it  at  least  yields  no  support  to  the 
proposition  for  which  it  is  cited.  In  the  course  of  the  trial 
in  that  case,  the  second  count  of  the  declaration,  which  was 
for  want  of  proper  care  in  keeping  and  providing  for  certain 
slaves  hired  to  work  on  a  railroad,  the  defendants  oflfered  to 
prove  "  that  the  nature  of  the  railroad  work  kept  the  hands 
but  a  short  time  at  any  one  place ;  that  the  shanty  assigned 
to  the  hands  at  the  place  in  question,  was  as  good  as  those 
usually  erected  for  the  business,"  which  testimony  was  reject- 
ed by  the  presiding  Judge.  This  Court  held  that  the  testimo- 
ny ought  to  have  been  admitted,  giving  therefor  the  following 
reasons.  "  The  defendants  were  bound  to  ordinary  care,  that 
is,  such  care  as  prudent  men,  generally,  under  the  same  cir- 
cumstances, and  engaged  in  the  same  business,  take  of  their 
own  slaves.  Hence,  it  became  material  in  this  case,  to  show 
what  was  the  degree  of  care  generally  practiced  by  tlie  per- 
sons engaged  in  making  railroad  embankments  and  excava- 
tions, in  respect  to  the  lodging  of  their  own  slaves,  employed 
in  the  work.  For,  certainly,  one  who  hires  himself  or  his 
slave  to  serve  in  a  particular  employment,  must  be  supposed  to 
understand  the  usages  and  ordinary  risks  in  that  employment, 
and  to  contract  in  reference  to  them."  In  the  case  now  be- 
fore us,  the  witnesses  were  permitted  to  describe  the  kind  and 
condition  of  the  huts  or  shanties,  in  which  the  plaintiff's  slaves 
were  lodged,  and  each  one  who  speaks  on  that  subject  saj^s 
they  were  inferior  to  those  ordinarily  provided  for  slave  la- 
borers on  railroads.  Mr.  Raiford  says  that  the  accomodation 
for  the  railroad  hands,  "were  notliing  like  as  good  as  are  ordi- 
narily^ used  on  works  of  the  kind,  and  were  nothing  like  as  good 
as  an  ordinary  horse  stable."  Mr.  Robinson  says  that  those 
he  saw  at  the  Heritage  place,  "  lacked  a  great  deal  of  being 
as  good  as  ordinary — ^they  would  be  very  poor  hoi'se  stables." 
He  said  further,  that  they  did  not  look  to  be  as  good  as  those 
he  had  seen  on  the  North  Carolina  railroad.  Mr,  Loftin 
states  that  "  he  never  saw  any  shanties  any  where  else,  as 


DECEMBER  TERM,  1860.  255 

Lane   v.    Washington. 

poor  (soiT}')  as  those  at  the  Heritage  place — that  tlie  latter 
were  not  as  good  as  an  ordinarj  horse  stable."  On  cross  ex- 
amination he  said  that  the  shanties  did  not  deserve  the  name. 
It  is  stated  in  the  bill  of  exceptions,  that  none  of  the  witnes- 
ses knew  whether  the  slaves  in  question  had  remained  at  the 
shanties  during  the  snow,  or  the  time  when  they  had  left  the 
employment  of  the  defendant,  nor  which  of  the  shanties  they 
occupied,  except  from  the  conversation  between  Raiford  and 
Parrott.  In  these  respects,  this  case  difters  materially  from 
that  of  Slocuriib  v.  Washington^  above  referred  to,  in  which  it 
appeared,  affirmativelj^  that  the  plaintiff's  slaves  were  frost 
bitten  and  injured,  not  by  remaining  in  their  hut,  where  oth- 
er slaves  were  proved  to  have  remained  during  the  snow 
storm,  and  thereby  kept  themselves  unharmed,  "  but  on  their 
journey  to  their  master's  in  another  county,  undertaken  and 
performed  without  the  direction  of  the  defendants  and 
against  the  orders  of  the  manager."  In  this  case  W.  C.  Lot- 
tin  stated  that  he  had  four  hands  in  the  defendants  employ- 
ment who  stayed  at  these  shanties  during  the  snow,  antl  that 
two  of  them  were  frost  bitten,  though  he  had  heard  that  one 
of  these  two  had  fallen  into  a  ditch,  and  remained  there  some 
time. 

The  result  of  our  examination  of  the  testimony  is,  that  the 
lodging  of  the  plaintiff's  slaves  in  any  of  the  shanties,  describ 
ed  by  the  witnesses,  was  not  the  taking  such  care  of  them  as 
a  man  of  ordinary  prudence  would  take  of  his  own  slaves  em- 
ploj'ed  in  similar  business,  much  less,  was  it  the  taking  good 
care  of  them  and  furnishing  them  with  good  accommodations. 
For  the  error  committed  by  his  Honor,  in  his  instructions,  in 
relation  to  the  second  and  third  counts,  there  must  be  a  rever- 
sal of  the  judgment,  and  the  grant  of  a  venire  de  novo,  and 
tliis  renders  it  unnecessar}'  for  us  to  notice,  particularly,  the 
other  points  made  in  the  case.  The  reversal  of  the  judgment 
in  the  plaintiff's  favor,  on  the  fourth  count,  follows,  necessa- 
rily, from  the  grant  of  a  new  trial  to  him  on  the  second  and 
third. 

Per  Curiam,        Judgment  reversed,  and  a  venire  de  novo. 


356  IN  THE  SUPKEME  COUET. 


Ashe  V.  Streator. 


THOMAS  a  ASHE  AND  JOHNSON   R.   HARGRAVE   v.   EDWARD 
H.  STREATOR  et  al 

All  Courts  have  the  inherent  power  to  revise  and  amend  their  records,  and 
naake  them  conform  to  the  truth. 

The  power  of  the  county  courts  to  amend  their  records,  is  a  discretionary 
power,  subject  to  the  revisal  of  the  superior  court  on  an  appeal,  but  the 
Supreme  Court  has  no  power  to  examine  into  the  correctness  of  the  exer- 
cise of  such  discretion  in  the  courts  below. 

Where,  however,  the  superior  court  erroneously  decided  that  a  county  court 
had  no  power  to  make  an  amendment,  it  was  Jield  that  this  Court,  on  an 
appeal,  would  correct  such  error. 

Appeal  from  a  motion  to  amend,  heard  before  Fkench,  J., 
at  the  last  Fall  Term  of  Anson  Superior  Court. 

This  was  a  motion  in  the  County  Court  of  Anson,  for  leave 
to  amend  the  record  of  that  court,  made  at  April  Term,  1859, 
in  the  case  of  Thomas  S.  Ashe  and  Johnson  R.  Ilargrave  v. 
Edward  H.  Streator,  Benjamin  C.  Hutcliinson,  Thomas  W. 
Kendall,  Charles  E.  Smith  and  George  A.  Smith.  It  appear- 
ed by  the  records  of  the  said  county  court,  that  the  plaintiffs, 
at  that  term  obtained  a  judgment  against  all  these  defend- 
ants, from  which  they  all  appealed.  In  the  Superior  Court, 
at  Fall  Term,  1S59,  the  judgment  was  affirmed,  andanexecu- 
lion  issued  to  March  Term,  1860.  The  execution  was  stayed 
in  the  Superior  Court,  and  has  not  yet  been  satisfied.  At 
April  Term,  1860,  of  Anson  County  Court,  Thomas  W.  Ken- 
dall, Charles  E.  Smith  and  Geo.  A.  Smith,  through  their  coun- 
sel, moved  to  amend  the  record  of  the  April  Term,  1859,  of  that 
Court,  so  as  to  show  that  only  Edward  II.  Streator  and  Ben- 
jamin C.  Hutchinson,  appealed  to  the  Superior  Court.  The 
County  Court  after  hearing  testimony  and  the  argument  of 
counsel  on  both  sides,  allowed  the  motion,  and  Samuel  Smith, 
jun.,  and  John  Stacj^,  the  sureties  to  the  appeal  from  the 
County  to  the  Superior  Court,  prayed  and  appeal  to  the  Su- 
perior Court. 

His  Honor,  in  the  Superiw  Court,  disallowed  the  motion, 
on  the  ground,  that  the  County  Court  had  no  power  to  make 


DECEMBER  TERM,  1860.  25T 

Ashe  V.  Streator. 

the  amendment,  from  which  ruling,  the  defendants,  Kendall, 
George  A.  Smith  and  Chares  E.  Smith,  appealed  to  this  Court., 

McCorklc  and  Strange,  for  the  plaintiffs.. 
li.  II.  Battle,  for  the  defendants. 

Manly,  J.  The  question  made  in  the  case  is,  as  to  the 
power  of  the  county  court  to  amend  its  records  of  a  previous 
term. 

Upon  an  appeal  to  the  Superior  Court  from  the  Court  be- 
low, the  former,  without  revising  the  discretion  of  the  Coun- 
ty Court,  held  that  that  Court  did  not  have  the  power,  and 
consequently,  reversed  its  judgment,  and  from  this  decision 
of  the  Supei'ior  Court,  there  was  an  appeal  to  this  Court. 
There  is  eiTor  in  the  decision  of  the  Superior  Court. 

No  facts  are  stated  in  tlie  case,  that  would  deprive  the 
County  Court  of  the  discretionary  power,  inherent  in  all 
courts,  to  I'cvise  its  records,  and  make  them  conform  to  the 
truth.  In  the  cate  of  l^]iUlij)se  v.  lligdon.,  Busb.  Rep.  380, 
the  ])ower  of  amendment,  residing  in  the  courts  of  North  Caro- 
lina, is  fully  and  distinctly  stated,  and  the  case  now  before  us 
falls  clearly  within  tlie  limitg  of  the  power  there  defined. 

It  is  a  mistake  ft)  suppose  that  interests  have  vested  under 
the  record  as  it  stands,  that  prevent  an  amendment.  The 
persons,  whose  interests  are  affected,  are  parties  to  the  record. 
They  are  bound  to  know  tlie  truth  of  the  transactions  as  to 
which  the  record  speaks— to  act  upon,  the  truth,  as  it  happen- 
ed, and  upon  the  expectation  that  the  record  will  be  made  to 
speak  truly.  No  party  has  a  riglit  to  complain,  and  no  other 
person  has  an  interest  that  will  be  prejudiced. 

So  much  for  the  power  in  tlie  County  Court.  Whether 
they  have  exercised  the  power  Avitli  discretion,  it  is  not  our 
province  to  say,  nor  have  we  the  means  of  knowing. 

Instead,  therefore,  of  disn)issing  the  application  for  the 
want  of  ]io\ver,  the  Superior  Court  ought  to  liavo  entertained 
jurisdiction  of  it,  and  considered  it  as  a  matter  addressed  to  its 
sound  legal  discretion.     The  exercise  of  discretionary  pow- 

17 


258  m  THE  SUPKEME  COUET. 

Adams  v.  Smallwood. 

ers  in  the  county  courts,  is  subject  to  be  revised  in  the  supe- 
rior. In  this  Court,  we  liave  no  such  revising  power,  and 
have  taken  cognizance  of  this  case,  only  in  consequence  of 
the  error  in  law,  of  the  Court,  in  holding  it  had  7io  poioer. 

This  opinion  should  be  certified  to  the  Superior  Court,  that 
it  may  proceed  to  adjudge  the  matter  before  it  by  the  ap- 
peal, according  to  its  discretion,  and  the  course  of  the  Court. 

Per  Curiam,  Judgment  reversed. 


PETER  ADAMS  v.  PYLADES  SMALLWOOD. 

Where  two  fi  fas  had  been  issued  to  different  counties,  on  the  same  judgment, 
and  one  had  been  satisfied  before  the  return  term,  it  was  held,  in  order  to 
vacate  a  sale  made  of  the  defendant's  land  on  the  retu/n  day,  under  the  se- 
cond execution,  to  be  competent  for  the  court  to  quash  and  set  aside  such 
second  executiou. 

This  was  a  motion  to  set  aside  an  execution,  before  Saun- 
ders, J.,  at  last  Fall  Term  of  Guilford  Superior  Court. 

The  facts  are  these :  Peter  Adams  obtained  a  judgment 
against  Pylades  Smallwood  and  Joab  Hiatt,  at  February 
Term,  1860,  of  Guilford  County  Court,  for  $285.  Two  fieri 
f aclases  issued  upon  said  judgment,  i-eturnable  to  May  Term, 
1860,  one  directed  to  the  sheriff  of  Halifax  county,  where  the 
defendant,  Smallwood,  lived,  which  was  returned  on  Wednes- 
day of  the  return  term  "satisfied,"  and  the  money  paid  into 
office ;  the  other  issued  to  tlie  sheriff  of  Guilford,  who  levied 
the  same  on  a  house  and  lot,  and  having  advertised  the  same 
according  to  law,  exposed  it  to  sale,  as  the  property  of  Small- 
wood  on  Monday  of  May  term,  1860,  when  M.  D.  Smith  be- 
came the  last  and  highest  bidder,  at  the  price  of  $560. 

On  Saturday  of  the  said  term,  Adams,  having  received  his 
debt  on  the  execution  to  Halifax,  moved  the  Court  to  set  aside 
and  vacate  X\\Qfi.fa.  directed  to  the  sheriff  of  Guilford. 


DECEMBl^R  TEEM,  1860.  259 

Adams  v.  Smallwood. 

This  motion  was  opposed  by  Smith,  who  had  purchased  the 
property  under  it,  but  was  allowed  by  the  Court.  Smith  was 
permitted  to  appeal  to  the  Superior  Court,  and  in  that  court 
the  same  motion  was  made  and  allowed  by  the  Oourtj  from 
which  ruling,  Smith  appealed  to  this  Court. 

Morehead  and  Gorrdl^  for  the  plaintiff 
SooU^  for  the  defendant. 

Manly,  J.  It  is  believed  to  be  within  the  power  of  a  plain- 
tiff, who  has  judgment,  to  sue  out  a  writ  oi  fieri  facias,  and 
before  return  da}',  Jiothing  being  done,  to  return  it  into  the  of- 
iBce  and  sue  out  another,  but  it  is  not  within  his  power  to  take 
two  writs  at  the  san?e  time,  without  special  leave  from  the 
court.  It  was,  therefore,  irregular  and  without  any  warrant 
<jf  law.  that  the  two  writs  oi  fieri  facias  were  sued  out  in  this 
case.  All  that  is  decided,  as  we  conceive,  in  the  case  of  2Ic- 
Nair  v.  Ragland,  2  Dev.  42,  is  in  confonuity  with  the  above. 

It  was  competent,  therefore,  for  the  Court,  upon  its  own 
motion,  to  have  quashed,  at  least  one  of  the  writs.  It  was  es- 
pecially proper  for  it  to  do  so,  after  one  was  satisfied.  The 
judgment  thereb}'-  became  extinct,  and  i\\Q  fi^ri  facias  was 
consequently  deprived  of  all  legal  vitality. 

It  might,  occasionally,  conduce  to  the  ends  of  Justice  to  be 
allowed  to  take  out  more  than  one  execution  at  a  time  ;  and, 
upon  proper  suggestions  as  to  its  expediency,  and  satisfactory 
assurances  that  it  would  not  be  urged  for  the  purposes  of  op- 
pression or  fraud,  the  court  would  allow  it.  The  writs  in  such 
case  would  be  put  into  action  upon  the  responsibility  of  the 
party  suing  them  out,  but  this  responsibility  would  not  dis- 
pense the  court  from  the  duty  of  seeing  that  the  objects  were 
apparently  legitimate  and  fi-om  guarding,  as  far  as  possible, 
against  a  misuse  of  the  process.  It  is  a  power,  in  other  words, 
which  the  court  ought  to  put  into  the  hands  of  plaintiff's  spar- 
ingly and  with  caution. 

Per  Curiam,  Judgment  affirmed. 


i 


260  IN  THE  SUPEEME  COUET. 


Bryan  v.  The  Enterprise. 


ELIAS  BRYAN  v.  THE  STEAMER  ENTERPRISE. 

Where  an  attachment  was  sued  out  against  the  owner  of  a  vessel,  under  the 
27th  and  28th  sections  of  the  7th  chapter  of  the  Revised  Code,  it  was  held 
that  a  prosecution  bond,  made  payable  to  the  "  owner"  of  the  vessel,  by 
that  description,  was  sufficient. 

The  6th  section  of  the  7th  chapter  of  the  Rev.  Code,  authorising  the  sale  of 
perishable  articles  levied  on  under  an  attachment,  applies  only  to  cases  of 
original  attachment,  and  not  to  those  against  vessels  authorised  by  the 
27th  and  28th  sections  of  the  7th  chapter  of  the  Revised  Code,  and  it  was 
held,  therefore,  that  a  sale,  by  the  sheriff,  of  a  vessel  so  levied  on,  under 
this  act,  was  void,  and  did  not  discontinue  the  suit. 

This  was  an  attachment  under  the  statute,  Eevised  Code, 
chapter  7,  sections  27  and  28,  to  subject  a  vessel  to  the  pay- 
ment of  a  debt  for  work  done  by  plaintiff  on  said  vessel,  tried 
before  Bailey,  J.,  at  Spring  Term,  1860,  of  Chatham  Superi- 
or Court. 

The  following  is  a  copy  of  the  affidavit  and  the  prosecution 

bond  : 

"  State  of  North  Carolina,  Chatham  county. 

"  Elias  Bryan,  maketh  oath  before  me,  one  of  the  justices 
of  said  county,  and  State  aforesaid,  that  the  steamer  Enter- 
prise is  indebted  to  him  in  the  sum  of  one  hundred  and  nine- 
ty dollars  and  forty-seven  cents,  to  the  best  of  liis  knowledge 
and  belief,  for  work  and  labor  done  upon,  and  provisions  fur- 
nished to  the  steamer  Enterprise. 

Sworn  to  and  subscribed  before  me,  this  the  6th  of  August, 

1857." 

"  State  of  JSTorth  Carolina,  Chatham  county. 

"  Know  all  men  by  these  presents,  that  we,  Elias  Bryan 
and  John  W.  Scott,  are  held  and  bound  unto  the  owner  of 
the  steamer  Enterprise,  in  the  sum  of  three  hundred  and 
eighty  dollars  and  ninety-five  cents,  to  be  paid  to  him,  his 
heirs,  exccutoi's,  administrators  and  assigns.  The  condition 
of  the  above  obligation  is  sucli,  that,  whereas  the  above 
bounden  Elias  Bryan,  hath  this  day  prayed  an  attachment  in 
his  favor,  against  the  steamer  Enterprise,  for  the  sum  of  one 


<i^ 


1 


w 


DECEMBER  TERM,  1860.  261 

Bryan  v.  The  Enterprise. 

Imndred  and  ninet}'-  dollars  and  forty-seven  cents,  and  hath 
•obtained  the  same,  returnable  to  the  Superior  Court  of  Law, 
to  be  held  at  the  court-house  in  Pittsborough,  on  the  third 
Monday  of  September,  1857.  Xow,  if  the  said  Bryan  shall 
prosecute  his  said  suit  with  effect,  or  in  case  he  fail  therein, 
shall  well  and  truly  pay,  and  satisfy  to  the  said  defendant  all 
such  costs  and  damages  as  sluill  be  recovered  against  said 
plaintiff,  his  heirs,  executors  and  administrators,  in  any  suit 
or  suits,  wliich  ma}'  be  hereafter  brought  for  wrongfully  suing 
out  said  attachment,  then,  this  obligation  to  be  void;  other- 
wise to  remain  in  full  foi^e  and  virtue." 

The  attaclimeut  issued,  and  the  sheriff  returned  it  wnth  an  en- 
dorsement thereon,  setting  out  tliat  hehad  levied  the  same  upon 
the  steamer  Enterprise,  and  that  the  vessel  having  remained 
in  his  possession  for  thirty  days  unreplevied,  he  had,  upon 
the  certificate  of  three  freeholders,  that  the  said  vessel  was 
perishable  property,  sold  the  same  to  the  liighest  bidder. 

Upon  the  return  of  the  writ  and  bond  to  the  Superior  Court 
at  Fall  Term,  1858,  one  William  P.  Elliott,  intervened  for  his 
interest  in  the  vessel,  and  filed  a  plea  in  abatement,  praying 
to  have  the  attachment  quashed,  for  the  reason,  that  the  same 
*'  had  been  issued  without  bond  taken  and  returned  accord- 
ing to  the  provision  of  the  act  of  Assembly  in  such  cases  made 
and  provided." 

To  this  plea,  in  abatement,  there  was  a  replication  by  plain- 
tiff, setting  out  tiie  substance  of  the  above  recited  bond, — 
There  was  a  demurrer  to  the  replication  and  a  joinder  in  de- 
murrer by  the  plaintiff*. 

Upon  the  argument,  it  w-as  adjudged  by  the  Court,  that 
the  demurrer  be  sustained,  the  plea  held  good,  and  attach- 
ment quashed.     Plaintiff  appealed  to  this  Court. 

Cantwell  and  Iloioze^  for  the  plaintiff. 
PhilUj}8^  for  the  defendant. 

Battle,  J.  Tiie  last  two  sections  of  our  attachment  law, 
as  contained  in  the  7tli  chapter  of  the  Revised  Code,  were  in- 


% 


» 


262  IN  THE  SUPREME  COURT. 

Bryan  v.  The  Enterprise. 

tended  to  give  a  lien  "  on  any  ship,  steamboat  or  other  vessel, 
for  or  on  account  of  any  work  done,  or  materials  furnished, 
c%c,"  in  favor  of  those  who  might  do  the  Avork,  or  furnish  the 
materials,  i*cc.,  and  to  pi-ovide  the  mode  of  proceeding,  by  _ 
which  that  lien  should  be  made  efl'ectual ;  (see  Rev.  Code,  | 
chap.  T,  sections  &7  and  28).  Among  the  provisions,  for  this 
-^  end,  it  is  declared  that  any  ereditoi',  who  intends  to  avail 
himself  of  the  remedy,  shall,  by  himself,  or  his  agent,  or  at- 
torney, before  suing  oat  his  attachment,  "  first  verify  his  debt, 
and  the  manner  in  which  it  was  contracted,  by  affidavit,  and 
shall  enter  into  bond,  conditioned,  for  the  indemnit}-  of  the 
defendant,  in  the  manner  provided  by  law."  The  plea,  in 
abatement,  put  in  by  the  owner  of  the  steam-boat,  who  inter- 
venes to  protect  his  interest,  brings  up  for  consideration  the 
question,  as  to  whom  this  bond,  for  the  indemnity  of  the  de- 
fendant,  shall  be  made  payable. 

It  is  manifest  that  tlie  proceeding,  under  this  statute,  is  one 
i?i  rein,  and  we,  accordingly,  so  held  it  to  be  in  the  case  of  'I 
Cameron  v.  The  Brig  Jlareellus,  3  Jones'  Rep.  83.  It  is- 
equally  clear,  that  the  owner  of  tlie  vessel  or  steam-boat,  or 
any  other  jjerson  claiming  an  interest  in  her,  may  intervene- 
and  have  himself  made  a  party  defendant,  for  the  purpose  of 
protecting  tliat  interest,  as  we  held  in  the  same  case.  The 
person  who  came  in  and  was  made  party  in  this  case,  con- 
tends that  he  is  the  proper  defendant,  and  that  the  bond, 
wliicli  the  plaintiff  gave,  upon  taking  out  his  attachraenty 
should  not  have  been  made  payable  "  to  the  owner  of  the 
steamer  Enterprise,"  but  "  to  the  defendant,"  or  perhaps, 
more  propei'lj,  "  to  the  person  who  shall  become  defendant.'' 
It  is  very  certain  that  the  bond  cannot  be  made  payable  to 
any  particular  person  by  name,  because  the  proceeding  being 
in  rem,  there  is  no  such  person  to  receive  it,  or  for  whom  the 
magistrate,  who  issues  the  attachment,  can  accept  it.  To 
make  it  payable,  as  contended  for  hy  the  defendant,  involves 
a  technical  difficulty,  which,  if  possible,  ought  to  be  avoided. 
A  bond  being  a  deed,  or  instrument  under  seal,  must  be  made 
to  some  pbligee,  to  whom,  or  for  whom,  it  may  be  delivered  ; 


■••> 


DECEMBER  TERM,  1860.  263 

Bryan  v.  The  Enterprise 

Marsh  V.  JBrooks,  11  Ire.  409 ;  Latham  v.  JRespass,  Bnsb. 
Rep.  138  ;  Gregory  v.  Dozier^  6  Jones'  Rep.  1.  Now,  in  a 
case  like  the  present,  the  bond,  when  it  is  given,  cannot  be  made 
to  "the  defendant'''  as  a  certain  obligee,  because  there  is  no 
defendant,  who  can  be  described  by  his  christian  and  sur- 
name, or  simply  by  tlic  description  of  "defendant."  But 
there  is  always  some  person  who  is  the  owner  of  the  vessel  or 
steam-boat,  and  to  him,  by  the  description  of  "owner,"  the 
bond  may  be  made  payable,  and  for  him  the  magistrate  may 
accept  the  deliver}^  of  it  from  the  plaintiff.  Should  the  ab- 
eolute  owner  intervene,  he  may,  of  course,  have  a  remedy  on 
the  bond,  in  case  of  its  breach,  and  we  think  that  any  person, 
who  can  show  a  suthcient  interest  in  the  vessel  or  steam-boat, 
to  be  permitted  by  the  court  to  intervene  for  that  interest, 
will  be  taken  to  be  "  the  owner,"  for  the  purpose  of  a  reme- 
dy on  the  bond.  Our  opinion  then  is,  that  the  plea,  in  abate- 
ment, cannot  be  sustained. 

But  the  defendant,  through  his  counsel,  has  raised  an  ob- 
jection in  the  argument  here,  that  the  plaintiff's  action  was 
discontinued  by  the  sale  of  the  boat,  upon  the  ground,  that 
the  tldiKj  attached  being  gone,  there  was  nothing  to  keep  the 
case  in  Court.  AVe  are  satisiied,  that  the  6th  section  of  the 
attachment  law,  which  provides  for  the  sale  of  perishable  ar- 
ticles, applies  onl}'  to  cases  of  original  attachment,  and  not  to 
those  against  vessels  and  steam-boats,  authorised  by  the  2Tth 
jind  28th  sections  of  the  act.  The  sheriff,  therefore,  had  no 
authority  to  sell,  and  his  sale  was,  consequently,  null  and 
void,  and  left  the  boat  in  the  same  condition  in  which  it  was 
before.  It  does  not  appear  that  the  sale  was  made  at  the  in- 
stance of  the  plaintiff',  but  if  it  had  been,  it  could  not,  being 
void,  have  tiie  effect  to  discontinue  the  proceeding.  The 
judgment  must  be  reversed,  and  ?^ procedendo  issued. 

Per  Curiam,  Judgment  reversed. 


264  IK  THE  SUPREME  COURT. 


March  v.  Griffith. 


WILLIAM  B.  MARCH  v.  DANIEL  GRIFFITH,  ei  al 

Where,  upon  au  appeal  from  the  County  to  the  Superior  Court,  tlie  suit  pen- 
ded  for  three  terms  in  the  latter  court,  when  a  motion  was  made  to  dismiss 
the  appeal,  for  defects  in  the  appeal  bond,  it  was  ?ield  that  the  appellant 
might,  as  a  matter  of  right,  file  a  sufficient  bond,  and  prosecute  his  appeal, 
and  that  an  order  of  the  Court  below,  dismissing  the  appeal,  Avas  a  proper 
subject  for  the  revision  of  this  Court. 

This  was  a  petition  for  pavtition  of  land  among  several  ten- 
ants in  common,  brought  up  by  appeal  from  the  County  Court, 
and  heard  before  Dick,  J.,  at  Fall  Term,  1860,  of  Davie  Su- 
perior Court. 

The  petition  was  filed  at  June  Term,  1858,  of  Davie  coun- 
ty court,  M'here  it  pended  till  December  terra,  1858,  of  that 
court,  wlien,  upon  a  hearing  of  tlie  cause,  the  Court  ordered 
the  petition  to  be  dismissed,  and  from  this  ruling  plaintiff  ap- 
pealed to  the  Superior  Court,  and  filed  an  appeal  bond,  with 
D.  M.  Furchase  as  his  security,  but  whicli  M-as  not  signed  by 
the  appellant.  The  cause  pended  in  the  Superior  Court  until 
Fall  Term,  1860,  when  defendant  moved  to  dismiss  the  ap- 
peal for  the  above  recited  defect  in  the  appeal  bond,  together 
with  other  defects.  The  appellant  then  offered  to  put  in  any 
bond  tlie  Court  might  require,  but  his  Honor  adjudged  the 
bond  void,  and  dismissed  the  petition,  from  which  order,  pe- 
titioner appealed  to  this  Court. 

Thos.  J.  Wilson,  for  the  petitioner. 
Glemefit,  for  the  defendant. 

Manly,  J.  The  question  in  this  case  is,  whether  the  dis- 
missal of  the  case  in  the  Superior  Court  was  matter  of  discre- 
tion in  that  Court,  for  if  so,  we  cannot  revise  it  in  this. 

The  appeal  was  taken  at  the  December  term  of  Davie 
County  Court,  1858.  The  appeal,  therefore,  was  to  the  Spring 
term  of  the  Superior  Court,  1859. 

The  motion  to  dismiss,  for  defects  in  the  appeal  bond, 
was  made  at  the  Fall  term,  1860.    The  plaintiff  met  the  rao- 


DECEMBER  TEPwM,  1860.  265 

March   v.   Griffith. 

tion  by  an  offer  to  put  in  snch  a  bond  as  the  Court  might  re- 
quire. But  the  Court  held  the  bond  that  had  been  given, 
void,  and  refused  to  accept  another. 

With  regard  to  bdftids,  for  appeals,  the  appellate  court  has 
an  unquestioned  right  to  require  that  they  shall  be  in  form,  of 
sufficient  amounts  to  cover  the  accumulating  costs,  and  that 
there  sliall  be  responsible  sureties  to  the  same.  And  if,  at 
an}^  stage  of  a  cause,  a  deficiency  in  any  of  these  respects  be 
discovered,  it  is  in  the  power  of  the  court  to  liave  them  amend- 
ed or  renewed ;  and  questions,  as  to  the  sufficiency  of  the 
bond,  in  respect  to  the  amount,  tlie  solvenc}'^  of  the  sureties, 
or,  as  to  tlic  occasion  and  time  or  manner  of  putting  in  anoth- 
er security,  are  purely  matters  of  discretion.  But  there  are 
boundaries  to  this  discretion,  and  we  take  it,  when  a  suit  is 
permitted  to  go  up  to  the  superior  court,  with  an  insufficient 
bond,  and  to  pass  three  terms  of  tlie  court  in  that  condition, 
the  ap])cllant  has  a  right,  upon  a  decision  of  the  court  against 
tlie  bond,  then  and  tlicre  to  put  in  another,  such  as  the  Court 
may  approve.  To  liold  otherwise,  would  lead  to  absurdity. — 
For,  if  we  suppose  tlic  objection  to  the  bond  to  be  on  account 
of  some  technicality  about  wliich  counsellors  differ,  or  because 
the  sureties  have  become  insolvent,  the  first  knowledge  which 
appellant  could  have  of  tlie  soundness  of  the  objections, 
would  be  the  judgment  of  the  court  declaring  the  same,  and 
dismissing  his  suit.  He  would,  therefore,  be  put  out  of  court 
without  laches  or  default  on  Iiis  part.  The  most  sti-ingent  re- 
quirement in  such  case,  would  be  to  declare  the  insufficiency, 
and  re(juire  a  ])roper  bond  instanter. 

The  i)laintiff  had  a  riglit  to  have  such  an  opportunity  ten- 
dered him. 

We  think  there  was  error,  therefore,  in  refusing  to  accept 
the  plaintiff's  bond  when  it  M'as  offered.  The  range  of  the 
Court's  discretion,  in  that  particular,  was  transcended. 

Tlie  case  may  be  presented  in  another  point  of  view.  In 
Wallace  v.  Corhit^  4  Ired.  Rep.  45,  we  find  the  principle  es- 
tablished, that  an  appeal  bond  is  not  necessary  to  give  juris- 
diction to  the  appellate  court;  that  such  bond  may  be  waived 


see  m  the  supreme  court. 

Gates  V.   Whitfield. 

expressly  or  impliedh',  and  the  court  in  such  case,  will  pro- 
ceed without  it.  The  plaintiff,  by  putting-  in  an  instrument 
which  he  considered,  and  which  was  taken  as,  a  bond,  showed 
his  purpose  to  prosecute  the  suit,  Deten(Jant  acquiesces,  and 
puts  in  pleas  in  the  Superior  Court,  and  it  is  afterwards  con- 
tinned  at  two  terms.  A  peremptory  dismission  of  the  suit,  it 
seems  to  us,  is  a  violation  of  the  rights  of  the  parties  under 
this  waiver  of  the  bond.  It  is  a  surprise  which  it  would  be 
highly  unjust  to  permit — which  cannot  be  done,  as  we  think, 
except  upon  notice  and  opportunity  offered  the  parties  to  put 
themselves,  in  respect  to  each  other,  upon  their  strict  legal 
rights. 

With  respect  to  the  merits  of  this  petition,  we  express  no 
opinion.  AYhat  may  be  the  respective  interests  of  the  parties 
in  the  land,  and  wliat  the  effect  of  an  actual  partition  upon 
these  interests,  we  leave  to  the  consideration  of  the  Court  be- 
low, upon  the  proofs. 

Tliere  is  erroi-  in  the  order  of  the  Superior  Court,  and  it 
should,  therefore,  be  reversed,  and  the  Court  should  take  a 
proper  bond  for  securing  the  defendants' costs,  and  proceed  in 
the  cause  according  to  the  course  of  the  Court.  To  this  end 
the  opinion  will  be  certified. 

Per  Curiam,  Judgment  reversed. 


JAMES  H.  GATES  v.  JEFFERSON  WHITFIELD. 

Where  an  action  of  detinue  was  brought  for  a  female  slave,  and  the  case 
coming  to  the  Supreme  Gourt,  by  appeal,  a  judgment  was  rendered  here 
for  the  recovery  of  such  slave,  it  was  Jielcl  that  the  plaintiff  was  entitled  to 
a  scire  facias  from  this  Gourt,  for  the  defendant  to  show  cause  why  execu- 
tion should  not  issue  for  a  child  of  such  female  slave,  born  after  the  com- 
mencement of  the  suit  and  before  the  final  judgment. 


DECEMBER  TERM,  1860.  2G7 


Gates  V.   Whitfield. 


This  was  a  soire  facias  issuing  from  this  Court,  for  the  de- 
fendant to  show  cause  \s\\^  the  plaintift' should  not  have  exe- 
cution for  the  recovery  and  deliver}^  of  a  shive,  named  Hen- 
ry. An  action  of  detinue  had  been  begun  in  behalf  of  the 
plaintiff,  against  the  defendant  in  tlie  Superior  Court  of  the 
county  of  Person,  for  the  detention  of  certain  slaves,  and 
amongst  others,  a  female,  named  Eliza,  which,  after  pending- 
several  terms  below,  was  brought  to  this  Court,  by  appeal, 
and  the  plaintiff,  at  June  Term,  ISGO,  had  a  judgment,  that 
lie  luxve  and  recover  the  said  slaves,  including  the  said  female 
slave,  Eliza.  The  mrc /«(?ia-^  sets  out,  that  during  the  pen- 
dency of  this  suit  in  the  said  Superior  Court  of  Person,  and 
before  the  judgment,  in  this  Court,  the  female  slave,  Eliza, 
was  delivered  of  the  said  Henry,  and  the  process  is  for  the 
purpose  of  having  execution  for  the  delivery  to  the  plaintift" 
of  this  slave.  On  the  return  of  the  scl.  fa.  to  this  Court,  the 
defenchmt  appeared  and  contested  the  ])hiintiff's  right  to  this 
remedy,  contending  that  if  lie  was  entitled  to  the  slave,  at  all, 
it  could  only  be  recovered  in  another  action  commenced  in 
the  courts  below. 

Grahaw,  for  tlie  plaintiff. 

lieade  and  Fowle,  for  the  defendant. 

P>ATTLE,  J.  "We  are  clearly  of  opinion  that  the  plaintiff  is 
entitled  to  recover  the  infant  slave,  who  was  born  after  the 
commencement  of  the  action  of  detinue,  in  Avhich  he  had 
judgment  in  tliis  Court,  against  the  defendant,  for  the  mother; 
and  that  a  scire  facias  issued  against  the  defendant,  is  the  pro- 
per remedy.  It  is  not  denied  that  in  a  ]»roper  case,  the  Su- 
preme Court  may  issue  a  scire  facias,  as  the  power  to  do  so  is 
expressly  conferred  by  the  6th  section  of  the  oord  chapter  of 
the  Revised  Code.  The  enforcement  of  one  of  its  own  judg- 
ments, must  be  admitted  to  be  a  proper  case  for  the  issuing 
of  the  writ  by  the  Court,  and  we  shall  show  presently  that 
the  object  of  the  scire  facias,  in  the  present  case,  is  only  to 
make  effectual  and  complete  the  enforcement  of  a  judgment, 


268  IN  THE  SUPREME  COURT. 

Gates  V.  Whitfield. 

which  it  has  heretofore  rendered.  The  case  of  Jones  v.  Mc- 
Lcmrine^  7  Jones'  Rep.  392,  has  no  bearing  npou  the  present, 
because  that  was  a  scire  facias  against  bail,  which  was  an 
original  proceeding  against  persons  who  had  not  been,  there- 
tofore, before  the  Court,  and  which,  therefore,  as  an  original 
proceeding,  could  not  be  commenced  in  a  court,  which,  in 
relation  to  that  matter,  had  onh^  appellate  jurisdiction. 

That  the  issue  of  a  female  slave,  which  is  born  after  the 
commencement  of  an  action  of  detinue  for  the  mother,  is  em- 
braced in  the  judgment  which  ma}^  be  obtained  for  the  mo- 
ther, appears  from  what  was  held  by  the  Court  in  Vines  v. 
Brownrigg^  1  Dev.  and  Bat.  Rep.  239.  It  was  there  decided 
that  if,  upon  a  judgment  in  detinue  for  slaves,  the  execution 
is  satisfied  bj  the  pa^yment  of  the  assessed  value  by  the  de- 
fendant, and  its  receipt  by  the  ])laintiff,  the  title  to  the  pro- 
perty will  be  transferred  to  the  defendant  by  relation,  to  the 
time  of  the  verdict  and  judgment;  and  the  issue  born  of  said 
slaves,  between  the  rendition  of  the  judgment  and  the  satis- 
faction of  tlie  execution,  will,  of  consequence,  belong  to  him. 
And  why  would  the  issue  belong  to  the  defendant,  who  had 
paid  the  assessed  value  of  the  slaves  to  the  plaintiff,  who  had 
received  it  instead  of  the  slaves  themselves,  unless  they  were 
embraced  in  the  judgment?  This  being  so,  if  the  plaintiff, 
instead  of  receiving  the  value  of  the  slaves,  had  insisted  upon 
his  right  to  have  the  slaves,  themselves,  delivered  under  his 
execution,  and  the  mother,  onl}^,  had  been  taken  by  the  sher- 
iff and  delivered  to  him,  he  certainly  could  have  issued  a 
^cire  facias  with  a  view  to  the  enforcement,  by  another  exe- 
cution, of  the  residue  of  his  judgment.  In  the  case  now  be- 
fore us  J  the  issue  was  born  before  the  judgment,  though  af- 
4er  the  commencement  of  the  suit,  but  we  cannot  see  how 
that  can  differ  it,  in  principle,  from  the  case  wdiere  they  are 
born  after  the  judgment.  In  either  case,  the  issue  must  be 
regarded  as  incidents  to  the  subject-matter  of  the  litigation, 
and  as  such,  must  follow  their  principal. 

In  Vines  v.  Bvownrigg^  it  was  said  by  the  Court,  that  the 
plaintiff,  if  he  had  not  received  satisfaction  in  the  payment  to 


DECEMBER  TERM,  1860.  ^69- 


Cates  V.   Whitfield. 


him,  by  the  defendant,  of  the  assessed  value  of  the  slaves,, 
mentioned  in  the  writ  and  judgment,  jnight  have  sustained 
an  action  of  detinue  for  the  issue.  No  doubt  that  is  true,, 
but  it  is  not  said  by  the  Court,  nor  docs  it  follow  tliat  the 
plaintifi'  might  not  also  have  proceeded  by  a  scire  facias  to 
recover  the  issue  ;  and  if  there  be  any  force  in  reasoning  by 
analogy,  he  had  his  choice  to  adopt  eitlier  remedy.  In  jBri- 
lerj  V.  Cherry^  2  Dev.  Rep.  2,  the  plaintifi'  brought  detinue- 
against  a  person,  who  had  purchased  a  slave  during  the  pen.-- 
dency  of  a  t\)rmer  action  of  detinue,  and  the  defendant's  coun- 
sel contended  that  he  was  not  bound  by  tlie  former  judgment 
against  his  vendor,  because  tlie  jilaintiffhad  not  issued  ascire 
facias,  whereby  to  gain  tlio  fi-uit  of  his  former  judgment,  by 
which  mode  he  admitted  he  Avould  have  been  bound.  See 
3  Black.  Com.  413.  The  Court  did  not  sustain  the  objection, 
but  said  "  that  a  verdict  and  judgment  in  an  action  of  deti- 
nue, are  conclusive,  between  the  parties  and  their  privies.  It 
appeared,  however,  tliat  the  defendant,  in  that  suit,  was  a 
purchaser  under  an  execution  against  the  defendant  in  the 
first  suit,  which  prevented  his  being  a  privy.  Had  he  pur- 
chased from  the  defendant,  in  the  first  suit,  during  the  pen- 
dency of  the  litigation,  otherwise  tlian  under  execution,  it 
was  clearly  the  opinion  of  the  Court,  that  there  was  no  dis- 
tinction as  to  the  binding  effect  of  the  first  judgment,  whetli- 
er  the  plaintiff  proceeded  against  the  purchaser  by  another 
action  of  detinue,  or  by  a  sci,re  facias.  So,  we  think  in  tlic 
present  case,  the  plaintiff  had  liis  election  to  bring  an  action 
of  detinue  in  the  Court  below,  or  to  issue  a  scire  facias  from 
this  Court. 

In  coming  to  tliis  conclusion,  we  have  not  overlooked  the 
case  of  Houston  v.  Bibb,  5  Jones'  Rep.  83,  which  was  cited 
and  relied  on  by  the  counsel  for  the  defendant.  That 
was  an  action  of  'rcjdcmn,  instead  of  detinue,  and  the  Court 
founded  its  opinion  upon  the  express  words  of  the  Revised 
Statutes,  cli.  101,  sec  5,  wliicli  was  then  in  force,  tliat  tlic  chil- 
dren of  the  female  slave  born  during  the  pendenc}'  of  the  ac- 
tion, were  not  embraced  in  the  recovery.     Our  opinion  then 


270  m  THE  SUPREME  "court. 


Herring  v.  Utley. 


is,  that  the  plaintiff  is  entitled  to  a  judgment  and  execution, 
according  to  his  scire  facias. 

Per  Curiam,         Judgment  according  to  the  scire  facias^ 


JOHN  F.  HERRING  v.  WILLIAM  R.  UTLEY. 

Where,  in  an  action,  against  the  owner  of  a  dray  in  the  town  of  Wihningtou, 
brought  to  recover  the  value  of  a  trunlc  lost  from  the  defendant's  dray,  it 
was  sought  to  charge  the  defendant  as  a  common  carrier,  it  was  held  com- 
petent for  the  plaintiff  to  prove  that  it  was  the  duty  of  draymen  in  Wil- 
mington to  carry  baggage. 

Whether  the  owner  of  a  lost  trunk  can  be  admitted  to  prove,  by  his  own 
oath,  the  contents  of  a  trunk  lost.      Quere? 

This  was  an  action  on  the  case,  against  the  defendant  as  a 
common  carrier,  to  recover  damages  for  the  loss  of  the  plain- 
tiff's trunk,  tried  before  Ekencii,  J.,  at  Fall  Term,  1860,  of 
New  Hanover  Superior  Court. 

It  was  in  evidence  that  the  defendant  had  two  licensed  drajs 
in  the  town  of  Wilmington,  and  one  unlicensed  dray.  It  was 
further  in  evidence  that  plaintiff  asked  defendant  what  he  was 
going  to  do  about  his  trunk  which  was  lost  out  of  his  dray ; 
that  defendant  said  he  was  willing  to  pay  him  $40.00,  and 
that  the  offer  was  rejected  by  the  plaintiff. 

Plaintiff"  offered  to  prove  that  it  was  the  duty^  of  draymen 
in  Wilmington,  to  carry  baggage.  Defendant  objected  to  this 
testimony,  and  the  Court  sustained  the  objection.  Plaintiff' 
excepted. 

The  counsel  for  the  defendant  then  offered  to  introduce  the 
plaintiff'  to  prove  the  contents  of  the  trunk.  Defendant  object- 
ed. The  objection  was  sustained  by  the  Court.  Plaintiff"  ex- 
cepted. 

The  Court  having  intirnaied  the  opinion  that  there  was  no 


DECEMBER  TERM,  1860.  271 

Herring  v.   Utley. 

evidence  to  charge  tlie  defendant  as  a  common  carrier,  plain- 
tiff submitted  to  a  nonsuit  and  aj^pealed. 

Baker  for  the  pUiintiff. 
Strange,  for  the  defendant. 

Manly,  J.  Without  deciding,  at  present,  the  other  ques- 
tion of  evidence  appearing  upon  the  record,  there  is  one 
which  was  erroneously  ruled  below,  and  upon  which  plaintiff 
is  entitled  to  a  venire  de  novo. 

It  was  proposed  on  the  part  of  the  plaintiff  to  prove  that  ti 
■was  the  duty  of  druymen^  in  Wih/iinyton,  to  carry  haggaye. 
It  is  not  stated  how  it  was  to  be  proved,  but  supposing  it  to 
be  by  competent  testimony,  it  was  certainly  pertinent  and 
proper. 

The  case  states  as  a  fact,  that  defendant  had  three  drays  in 
the  town,  two  licensed  and  one  unlicensed,  and  there  was  evi- 
dence tending  to  show  that  plaintiff's  baggage  had  been  lost 
from  some  dray  of  defendant.  It  was  tlie  point,  therefore,  in 
the  cause,  wlietlier  drays,  licensed  or  unlicensed,  in  Wilming- 
ting,  are  accustomed  to  carry  baggage,  or  hold  tliemselvesout 
as  common  carrieis  of  the  same,  i^  accustomed  to  carry,  it 
was  their  duty,  and  if  their  duty,  they  are  common  carriers, 
and  subject  to  the  responsibility  of  that  class  of  public  ser- 
vants. 

By  thQ  term  baggage,  used  in  the  case,  we  understand  tlie 
ordinary  outfit  of  a  trunk  or  bag  or  botli,  of  a  traveller,  as 
distinguished  from  sacks,  bales,  casks  and  boxes  of  produce 
and  merchandize,  appertaining  to  tlie  trade  of  the  town.  It 
is  possible  that  diayinen  may  be  used  as  common  carriers  in 
one  of  these  departments  of  service  only,  or  in  both.  These 
are  proper  subjects  for  proof. 

Our  attention  has  been  directed  to  the  statement  that  two 
of  the  defendant's  di-ays  \vere  licensed.  We  are  not  informed 
what  is  the  pur]iort  of  the  license  spoken  of,  and  ai'e  unable, 
therefore,  to  see  the  full  signiiicance  of  tlie  statement.  If  tlie 
Hcense  be  to  carry  for  the  public,  on  the  streets  of  Wilming- 


272  m  THE  SUPREME  COURT. 


McCoy  V.  Justices  of  Harnett 


ton,  it  would  seem  to  present^  then,  a  question  whether  their 
range  of  duties  was  restricted  or  nnrosti-icted,  as  already  sug- 
gested. 

With  respect  to  the  other  question  of  evidence,  as  to  the 
competency  of  plaintifi"  to  prove  tlie  contents  of  his  trunlc, 
we  prefer  not  to  decide  it,  except  it  come  necessarily  into 
judgment.  It  is  a  new  and  important  application  of  a  princi- 
ple, viz,  of  evidence  from  a  party,  made  proper,  ex  necessita- 
te, and  ought  to  be  engrafted  upon  the  jurisprudence  of  the 
State,  if  at  all,  by  the  courts  after  full  consideration. 

Per  Curiam,         Judgment  reversed,  and  a  venire  de  novo^ 


PASCHAL  McCOy  v.  THE  JUSTICES  OF  HARNETT. 

A  contract  for  erecting  a  public  building,  mad©  with  a  committee  appointed 
by  the  justices  of  a  county,  when  performed  by  the  contractor,  must  be  ful- 
filled by  the  justices,  although  early  in  the  progress  of  the  worTc  they  had 
dismissed  the  committee,  and  endeavored  tO'  rescind  the  ordei*  appointing 
it,  and  had  given  notice  to  the  contractor  not  to  pi'oceed. 

Where,  a  contractor  to  erect  a  public  building,  after  the  dismission  of  the 
committee  through  whom  the  contract  was  made,  and  a  rescission  of  the- 
order  appointing  it,  and  a  notice  by  the  justices  not  to  go  on  with  the  build- 
ing, still  continued  to  act  under  such  committee  and  by  its  directions,  made- 
material  departures  from  the  specifications  in  the  contract,  it  was  held  tliat 
though  he  completed  the  building  within  the  time  specified,  yet  he  was  not 
entitled  to  recover  the  price  agreed  to  be  paid. 

Petition  for  a  mandamus,  heard  befo-re  French,  J.,  at  the 
last  Fall  Term  of  Cumberland  Superior  Court. 

The  application  was  to  compel  the  justices  of  Harnett 
county  to  pay  the  plaintiff  for  building  a  jail.  The  cause  was 
before  this  Court  at  June  term,  1S58,  (see  5  Jones'  Rep.  265,) 
and  again  at  June  Terra,  1859,  (see  (>  Jones'  Rep.  488,)  on 
which  occasions  several  points  referring  to  the  pleadings,  were 


DECEMBER  TEftM,  1860.  273 

McCoy  V.  Justices  of  Harnett. 

decided,  and  by  reference  to  which  reports,  a  full  history  of  the 
case  may  be  gathered.  Tlie  contiact  made  by  the  plaintiff 
with  the  defendants,  the  several  orders  made  by  the  justices, 
and  many  other  facts  not  material  to  the  view  finally  taken  of 
the  case,  are  there  set  out.  The  facts  upon  which  the  case  is 
determined,  are  fully  recite*!  and  commented  on  in  the  opinion 
delivered  b}^  the  Chief  Justice,  and,  therefore,  need  not  be 
repeated  here.  In  the  Court  below,  certain  issues,  whicii  had 
been  previously  made  up,  were  submitted  to  a  jury :  these 
M'ere — 

1.  Was  there  a  valid  and  legal  contract  made  on  the  part 
of  the  county  of  Harnett,  by  the  committee  of  public  build- 
ings, with  tiie  petitioner,  for  the  building  of  a  jail  for  the  said 
county  ? 

2.  Was  the  jail  built  according  to  contract? 

3.  If  not  built  according  to  tlie  specifications  and  terms  of 
contract,  was  the  departure  in  the  ])]an  or  arrangement  of  tlie 
work  allowed  and  directed  by  persons  authorised  to  make  a 
change  ? 

4.  Was  the  jail  received  by  the  committee  of  public  build- 
ings ? 

The  jury  responded  to  the  first,  third,  and  fourth  interroga- 
tories, in  the  affirmative,  and  to  the  second  in  the  negative. 

Exceptions  were  taken  to  the  testimony  offered,  and  to  the 
charge  of  the  Judge^  but  the  matters  involved  in  these  issuea 
being  looked  upon  by  this  Court  as  questions  of  law,  and  im- 
properly submitted  to  a  jury,  it  is  not  deemed  necessary  to 
report  the  exceptions. 

The  Court  ordered  a  peremptory  mandamus  to  issue,  and 
the  defendants  appealed. 

Person  and  JVetl  JIcKay,  for  the  plaintiff. 
Stra7ige,  for  the  defendant. 

Pearson,  C.  J.  No  material  fact  is  disputed,  and  the  con- 
troversy depends  entirely  on  questions  of  law. 

1.  At  June  Term,  1855,  the  justices  appointed  a  building 

18 


274  m  THE  SUPREME  COURT. 

McCoy  V.  Justices  of  Harnett. 

committee  with  authority  to  let  out  the  building  of  a  court 
house  and  jail. 

2.  In  August,  1856,  the  building  committee  made  a  contract 
with  the  petitioner  for  building  a  jail  according  to  certain 
specifications,  for  an  agreed  price,  to  be  paid  by  instalments 
as  the  work  progressed. 

3.  The  petitioner  immediately  commenced  the  work  by  col- 
lecting materials,  employing  workmen  and  hands,  and  laying 
the  foundation  of  the  jail. 

4.  At  September  term,  1855,  the  building  committee  made 
a  report  setting  forth  the  contract ;  wliereupon,  the  justices 
disapproved  of  the  contract,  discharged  the  committee,  and 
rescinded  the  order  of  June  term,  by  which  the  committee 
was  appointed,  and  notice  was  given  of  these  orders  to  the 
petitioner,  and  he  was  informed  that  the  justices  did  not  wish 
the  jail  to  be  built. 

5.  Notwitlistanding  these  orders,  the  building  committee 
continued  to  act,  and  the  petitioner  under  their  directions, 
went  on  with  the  work,  and  had  the  house  done  by  the  time 
specified  in  the  contract,  first  of  [November,  1856. 

6.  At  December  term,  1855,  the  following  order  passed  : 
"  Ordered  that  the  treasurer  of  public  buildings  be  authorised  to 
borrow  $10,000."  Also,  "  Ordered  that  the  treasurer  of  pub- 
lic buildings  pay  over  to  Mr.  Paschal  McCoy  $2000,"  which 
he  accordingly  did. 

7.  During  the  progress  of  the  work,  the  building  commit- 
tee, after  the  orders  of  September  and  December  terms,  made 
several  material  alterations  in  the  plan  of  the  building  (which 
they  reserved  a  right  to  do  by  a  clause  in  the  contract,)  and 
the  house  varies  in  tliese  particulars  from  the  specifications  set 
out  in  the  original  contract. 

8.  The  building  committee  received  the  house,  and  gave  a 
certificate  that  it  was  built  according  to  contract  as  modified. 

9.  Tlie  justices  refused  to  receive  tiie  house  or  to  pay  for  it. 
After  "a  return"  was  made  by  the  justices,  the  petitioner 

made  three  "pleas"  as  they  are  termed  ;  neither  of  these 
pleas  traverse  any  matter  of  fact,  but  thereby  set  out  positions 


DECEMBEJR  TEEM,  1860.  275 

MqCoy  V.  Justices  of  Harnett. 

of  law,  from  which,  as  was  contended,  it  followed  that  the 
petitioner  was  entitled  to  an  order  for  a  peremptory  mandam- 
us— that  is : 

1.  The  contract  made  by  the  building  committee  was  valid. 

2.  The  committee  had  the  power  to  make  the  changes  in 
the  plan  of  the  jail. 

3.  The  committee  had  power  to  receive  the  jail. 

On  the  face  of  the  record,  no  matter  of  fact  being  pnt  in 
issue,  the  intervention  of  a  jury  was  uncalled  for,  and  it  was 
the  duty  of  the  Court  to  give  judgment  on  the  facts  stated. 
So  the  issues  whicli  were  afterwards  made  up,  and  the  action 
of  the  jury  may  be  treated  as  surplusage,  and  the  question  is, 
did  his  Honor  err  in  the  conclusion  that  the  petitioner  was  en- 
entitled  to  a  peremptory  mandamus?  This  Court  is  of  opin- 
ion there  is  error. 

1.  The  contract  was  certainly  valid,  for  the  committee  had 
full  power  and  authority  to  make  it  under  the  orders  of  June 
term,  and  notwithstanding  the  subsequent  action  of  the  justi- 
ces, if  the  petitioner  had  done  the  work,  and  built  the  jail  ac- 
cording to  the  contract^  the  justices  would  have  been  bound  to 
pay  for  it.  For,  according  to  an  old  adage,  which  expresses 
the  law  very  forcibly,  "  it  takes  two  to  make  a  bargain,  and 
two  to  unmake  it."  It  was  not  in  the  power  of  the  justices  to 
repudiate  the  contract,  and  the  consent  of  the  petitioner  was 
necessary  to  rescind  it. 

2.  The  jail  was  not  built  according  to  contract,  and  the  pe- 
titioner is  forced  to  rely  on  the  action  of  the  committee,  after 
the  oi-der  of  September  term  discharing  it  and  rescinding  the 
order  for  its  appointmont,  in  order  to  show  tiiat  he  was  au- 
thorised to  depart  from  the  specifications  in  the  original  con- 
tract, and  thus  establish  the  allegation  that  he  has  performed 
the  contract  on  his  part. 

This  raises  the  question  on  which  the  case  turns:  Had  the 
justices  power  to  discharge  the  committee  and  revoke  its  au- 
thority ?  For,  if  it  had,  the  subsequent  action  of  the  commit- 
tee in  spite  of  the  justices,  was  wrongful,  and  the  alterations 
of  the  original  plan  were  without  authority  and  void.     As  the 


276  IN  THE  SUPKEME  COURT. 

McCoy  V.  Justices  of  Hi.rnett 

petitioner  was  unwilling  to  rescind  the  contract,  and  was  de- 
termined to  insist  on  his  legal  right  to  hold  the  justices  bound, 
although  he  was  notified  of  their  unwillingness  to  proceed 
with  the  bnilding,  it  behooved  him  to  see  to  it,  that  the  con- 
tract was  strictly  performed  on  his  part,  and  it  is  his  misfor- 
tune to  have  failed  to  do  so,  under  a  mistaken  idea  that  the 
committee  still  had  power  to  authorise  him  to  depart  from  the 
specifications. 

That  a  principal  has  power  to  discharge  an  agent  and  re- 
voke his  authority,  is  a  proposition  too  plain  to  admit  of  dis- 
cussion. 

On  the  argument,  several  distinctions  were  suggested  in  or- 
der to  take  this  case  out  of  the  general  rule : 

Where  a  contract  is  entered  into  by  two  individuals,  if  one 
attempts  to  repudiate  or  does  an  act  by  which  he  is  disabled 
from  performing  his  part,  the  other  may  pursue  one  of  three 
modes :  he  may  concur  in  the  repudiation  and  treat  the  con- 
tract as  rescinded,  or  he  may  go  on  and  perform  his  part  and 
bring  an  action  for  the  stipulated  price,  or  he  may  fortliwitli 
hring  an  action  and  recover  unliquidated  damages  for  hreach 
of  the  contract.  In  the  case  of  a  quasi  corporation  like  the 
justices,  the  party  may  agree  to  rescind,  or  he  may  go  on  and  do 
the  work,  and  by  mandamus  compel  the  payment  of  the  price, 
but  he  cannot  recover  unliquidated  damages,  as  the  writ  of 
mandamus  does  not  apply.  Under  the  terms  of  this  contract 
a  building  committee  was  necessary  in  order  to  inspect  the 
work  as  it  progressed,  and  give  certificates  for  the  monthly 
instalments ;  therefore,  the  justices  had  no  power  to  discharge 
the  committee,  unless  they  appointed  another,  within  a  rea- 
sonable time,  for  they  would  thus  disable  themselves  from 
perfoi-ming  their  part  of  the  contract,  and  yet  no  remedy 
could  be  had  against  them  to  recover  unliquidated  damages. 

Admitting  the  premises,  it  shows  that  the  remedy  against 
an  individual  by  action,  is  more  ample  than  the  remedy 
against  a  quasi  corporation  by  mandamus ;  but  we  are  unable 
to  see  how  it  proves  that  a  principal  cannot  discharge  an  agent. 
If,  by  the  terms  of  the  contract,  a  building  committee  was 


DECEMBER  TERM,  1860.  277 

McCoy  V.  Justices  of  Harnett. 

necessary,  the  petitioner  could,  by  a  writ  of  mandamus,  have 
compelled  the  justices  to  appoint  another  set,  within  reasona- 
ble time  after  the  first  was  discharged  ;  or  he  might  have  pro- 
ceeded to  do  his  work  according  to  the  contract,  and  compell- 
ed pajnnent  of  the  price,  as  the  justices  would  not  have  been 
at  liberty  to  take  advantage  of  their  own  wrong  in  failing  to 
appoint  another  committee. 

Another  suggestion  on  the  argument  was,  that  by  the  terms 
of  the  contract,  it  is  to  be  implied  that  the  petitioner  placed 
reliance  on  the  discretion  of  the  individuals  who  composed 
the  committee  and,  therefore,  the  justices  had  no  right  to 
discharge  them. 

Suppose  tliis  to  be  so,  or  suppose  it  had  been  expressed  in  the 
contract  that  the  individuals  composing  the  committee  should 
not  be  discharged  hj  the  justices,  and  others  put  in  their  pla- 
ces, it  would  not  have  had  the  efl'ect  of  preventing  the  justi- 
ces from  discharging  their  agent,  although  probably,  their 
doing  so  would  have  given  the  petitioner  good  ground  for  re- 
fusing to  proceed  with  the  contract. 

It  was  also  contended,  on  the  argument,  that  the  orders  at 
the  December  Terra,  recognized  the  existence  of  the  commit- 
tee, and  ratified  and  confirmed  their  action. 

We  are  unable  to  see  how  either  order  is  connected  with 
the  building  committee  which  had  been  discharged  at  the  pre- 
ceding term,  or  how  it  could  have  the  effect  to  resusitate  theni 
or  recognize  the  existence  of  such  a  committee.  The  treasur- 
er <£  ])id)liG  huildiuifs  was  ordered  to  borrow  $10,000,  and  he 
was  ordered  to  pay  the  petitioner  $2,000.  How  could  this  re- 
suscitate the  defunct  building  committee?  And,  so  far  from 
having  the  effect  of  ratifying  and  confirming  the  alterations 
which  were  afterwards  made  in  the  plan  of  the  jail,  it  only  fur- 
nishes an  inference  that  the  $2,000  was  considered  by  the  jus- 
tices as  an  amount  proper  to  be  paid  in  satisfaction  of  the  un- 
liquidated damages,  which  the  petitioner  had  incurred  by 
what  work  he  had  done  on  the  foundations,  and  his  outlay  in 
materials  and  hire  of  hands  up  to  the  time  when  he  was  noti- 
fied that  the  justices  did  not  wish  to  proceed  with  the  work, 


278  EST  THE  SUPEEME  COURT. 

Pattereon  v.  Murray. 

and  had  discharged  the  Iniikling  committee.  He  then  had  his 
election,  either  to  accept  it  in  satisfaction  and  rescind  the  con- 
tract, or  accept  it  under  protest,  as  a  part  payment,  and  pro- 
ceed to  do  the  work  and  claim  the  balance  of  the  price.  He 
elected  the  latter,  bnt  failed  to  comply  with  the  contract,  by 
departing,  without  anthorit}',  from  the  original  specifications. 
The  third  plea  is  merely  a  corrollary  or  deduction  from  the  se- 
cond and  falls  with  it. 

Per  Cukiam,        Judgment  reversed,  and  judgment  for  the 
justices,  dismissing  the  petition. 


WILLIAM  PATTERSON  v.  WILLIAM  J.  MURRAY. 

A  contested  sheriff's  election  before  the  justices  of  a  county  court,  is  not  an 
action  witliin  the  meaning  of  the  Revised  Code,  chapter  31,  section  75, 
which  entitles  the  successful  party  to  recover  costs. 

Motion  for  the  taxation  of  costs,  before  Howard,  J.,  at  the 
last  Fall  Term  of  Alamance  Superior  Court. 

The  defendant,  Murra}',  received,  apparently,  a  majority  of 
the  legal  voters  for  the  office  of  sheriff,  in  the  county  of  Ala- 
mance, and  at  the  next  terra  of  the  County  Court  made  ap- 
plication to  qualify,  but  was  opposed  in  this  by  the  plaintiff, 
Patterson,  who  had  given  notice,  previously,  and  specified 
the  grounds  of  his  opposition.  Witnesses  were  examined, 
and  the  matter  heard  at  length,  and  in  the  conclusion,  the 
contest  was  decided  in  favor  of  Murray,  who  gave  bonds  and 
was  qualiiied.  Tiiei'eupon,  the  County  Court  awarded  costs 
against  the  plaintiff,  Patterson,  who  appealed  to  the  Superior 
Court,  and  the  same  judgment  was  given  in  that  Court,  where- 
upon, Patterson  appealed  to  this  Court. 


DECEMBER  TERM,  1860.  279 

Patterson  v.  Murray. 

No  counsel  uppeared  for  the  plaintiff  in  this  Court. 
Graham  and  Jlill^  for  the  defendant. 

Manly,  J.  The  case  turns  upon  the  point,  whether  a  con- 
tested election  to  the  sheriff's  othce,  (which  accordinij:  to  the 
Revised  Code,  chap.  105,  section  18,  is  to  be  decided  b}^  the 
county  court,  a  majority  of  the  justices  being  present,)  is  an 
action  before  that  ti'ibunal,  within  the  purview  of  the  Code, 
chapter  31,  section  75.  We  think  not.  Tiie  Court  has  had 
occasion  often  to  remark,  that  costs  are  given  in  all  cases,  by 
virtue  of  express  legislative  provisions.  The  costs,  in  a  con- 
troversy of  the  kind,  now  before  us,  is  not  specially  given  in 
the  chapter  and  section  of  the  Code,  which  establishes  the 
tribunal  for  deciding  it,  and  they  must,  therefore,  be  award- 
ed, if  at  all,  by  virtue  of  the  general  provisions,  on  the  sub- 
ject, in  the  75  section  of  the  31  chapter,  above  referred  to. 

That  section  declares,  "  that  in  all  actions  whatsoever,  the 
party,  in  M'hose  favor  judgment  shall  be  given,  sliall  be  enti- 
tled to  full  costs."  Is  our  case,  then,  an  action  within  the 
provisions  of  this  section  ?  Practically,  the  term  "  action,"  is 
now  exclusively  appropriated  to  those  forms  of  judicial  reme- 
dy, which  are  ranked  under  the  three-fold  division  of  real, 
j)ersonal  and  mixed  actions.  But  it  is  not  necessary,  as  we 
conceive,  to  restrict  the  meaning  of  the  term  to  this  technical 
sense,  in  order  to  exclude  a  contested  election  from  being  in- 
tended by  its  use.  Burrill  in  his  Law  Dictionary,  title,  "Ac- 
tion," defines  that  term  to  mean  "  The  formal  means,  or  meth- 
od of  i>ursuing  and  recovering  one's  right  in  a  court  of  jus- 
tice." It  is  synonymous  with  "suit."  If  there  be  any  dis- 
tinction, it  is  that  tiie  former  is  applied,  exclusively,  to  pro- 
ceedings in  a  court  of  Law,  while  the  latter  is  applied,  indis- 
criminately, to  proceedings  in  Law  and  Kquit3\  In  the  use 
of  cither,  the  plain  import  would  seem  to  be  some  one  of  the 
ordinary  proceedings,  conducted  by  the  usual  formula  for 
establishing  and  enforcing  rights  in  a  court  of  justice;  which 
this,  clearly,  is  not. 

In  the  case  of  Dauglitrey  ex  parte^  6  Ire.  155,  it  is  decided 


280  IN  THE  SUPREME  COURT. 

Patterson   v.   Murray 

that  the  case  of  a  contested  election  of  clerk  in  the  county  court, 
is  not  subject  to  an  appeal  to  the  superior  court,  lliis  must 
be  upon  the  idea,  either  that  it  is  not  like  an  ordinary  suit 
and  subject  to  its  rules,  or  that  it  is  not  before  the  justices,  in 
their  judicial  capacity.  For,  if  it  be  a  suit,  and  before  them 
as  a  court,  a  right  of  appeal  would  follow  under  the  general 
provisions  of  law  regulating  appeals. 

If  our  Code  of  laws  be  consulted  as  to  the  duties  prescrib- 
ed for  the  county  court,  it  will  be  seen  that  these  duties  are 
not  confined  to  those  which  are  strictly  judicial,  but  are  of 
the  nature,  occasionally,  of  executive  or  legislative  duties. 
The  passing  upon  the  election  of  sheriff,  seems  to  pertain  to 
one  of  these  latter  departments,  in  governmental  afl'airs,  and 
belongs  to  the  functions  of  the  county  court,  which  are  not 
judicial. 

The  cases  of  Jones  v.  Pkysioo,  1  Dev.  and  Bat.  173,  and 
the  State  ex.  rel.  Dickens  v.  Justices  of  Person^  1  Dev.  and 
JBat.  406,  are  not  opposed  to  our  conclusions  in  this  case. 
The  first  involved,  simpl}'^,  an  enquiry,  whether  one,  as  to 
whom  costs  are  asked,  was  a  lyarty.  The  statute  gave  costs 
expressly  against  any  one  who  should  make  himself  a  party. 
The  second  w^as  a  case  of  maiidamus  dismissed  and  costs 
taxed  against  the  petitioners  as  u]}on  a  rule  nisi. 

We  are  of  opinion,  the  contested  election,  before  the  Coun- 
ty Court,  in  this  case,  was  not  an  action,  which  entitled  the 
successful  party,  by  virtue  of  the  statute,  to  costs.  The  judg- 
ment, thei-efore,  of  the  County  Court,  directing  costs  to  be 
taxed,  was  erroneous,  and  such  judgment,  under  the  general 
law^,  was  the  subject  of  appeal,  which  lies  from  any  sentence, 
judgment  or  decree  of  that  court. 

The  judgment  of  the  Superior  Court,  which,  likewise,  gave 
costs  upon  the  election  controversy,  should,  therefore,  be 
reversed  with  costs,  both  in  this  Court,  and  in  the  Superior 
Court,  against  the  appellee. 

Per  Curiam,  Judgment  reversed. 


DECEMBER  TERM,  1860.  281 


Bennett  v.  Taylor. 


MARTHA  BENNETT  v.  JOHN  R.  TAYLOR  d  ux. 

Where  a/,  fa.  on  a  justice's  judgment  was  levied  on  land,  and  the  regular 
proceedings  had  in  the  county  court  for  the  subjecting  the  land,  and  a  sale 
made  by  virtue  thereof,  it  was  held  that  the  county  court,  at  a  subsequent 
term,  has  no  authority,  on  motion  to  set  aside  ihe  Ji.  fa.  on  the  justice's 
judgment. 

This  M-as  an  appkal  from  the  Superior  Court  of  Granville, 
from  an  order  of  that  Court,  (Judge  Bailey  presiding)  to  set 
aside  a  Jieri  facias. 

An  action  of  ejectment  was  brought  by  Jolin  R.  Taylor  and 
wife,  of  Wake  county,  to  recover  an  undivided  part  of  a  tract 
of  land,  in  Granville  county,  in  the  possession  of  Josepii  II. 
Gooch,  who,  by  an  order  of  Court,  was  made  defendant,  which 
action  is  still  pending  in  Wan-en  Superior  Court.  Mrs.  Ben- 
nett, the  nominal  plaintitfin  this  case,  was  a  witness  for  Tay- 
lor and  wife  in  that  suit,  and  assigned  her  witness  tickets  to 
Gooch,  who  took  out  a  warrant  on  them  to  his  use,  and  ob- 
tained a  judgment  before  a  justice  of  the  peace  of  Wake  coun- 
ty. Tiiis  judgment  was  removed  to  the  county  of  Granville, 
in  the  way  directed  by  the  act  of  Assembly,  (Rev.  Code,  ch. 
62,  sec.  20)  and  a  fieri  facias  was  issued  thereon,  which  was 
levied  on  the  defendants'  interest  in  the  land,  for  which  the 
action  of  ejectment  had  been  brought.  Notice  of  this  levy 
was  given  to  tlie  defendants,  and  an  order  of  sale  made  by 
the  County  Court  of  Granville,  at  May  Term,  1859.  Pursu- 
ant to  this  order,  a  wi'it  oi  venditioni  exjyonas  issued,  directed 
to  the  coroner,  (Gooch  being  the  sheriff  of  Granville,)  and  the 
land  was  exposed  to  sale  and  bought  in  by  the  said  Gooch  at  a 
nominal  sum.  While  the  vcn.  ex.  was  in  the  hands  of  the 
coroner  the  defendants  sent  to  the  clerk  of  the  county  court 
of  Granville,  the  full  amount  of  the  judgment  as  it  had  been 
furnished  to  them  by  the  clerk,  with  interest  on  the  same  up 
to  June,  1859,  and  the  costs,  and  this  amount  was  paid  to  the 
coroner  on  21st  of  May,  1859,  when  he  made  known  that  ho 
claimed  $2.74  for  commissions.     This  amount  was  sent  to  the 


282  m  THE  SUPREME  COURT. 

Bennett  v.  Taylor. 

clerk  on  the day  of  July,  and  tendered  to  the  coroner, 

who  refused  it,  saying  that  he  had  sold  the  land  on  the  1st 
Monday  of  that  month. 

The  counsel  for  the  defendants,  on  these  facts,  moved  in 
the  County  Court  to  set  aside  the  Jieri  facias  levied  on  the 
land,  which  that  Court  refused.  The  defendants  appealed  to 
the  Superior  Court,  and  in  that  Court  the  counsel  moved  to 
set  aside  the  justice's  execution,  levied  on  the  land,  and  re- 
turned to  May  Term,  1859,  of  the  County  Court,  and  to  set 
aside  the  judgment  given  at  that  term  for  the  plaintiff,  and 
to  set  aside  the  order  for  the  issuing  of  the  venditioni  exjyonas, 
and  to  set  aside  that  writ  itself,  and  to  vacate  the  sale,  made 
under  it,  on  the  ground  of  surprise,  and  because  the  judg- 
ment was  satisfied  hj  the  payment  of  the  money  to  the  coro- 
ner. 

The  Court  set  aside  the  fieri  facias^  but  denied  the  other 
motions.     Fi'ora  this  judgment  the  plaintiff  appealed. 

Foiole,  for  the  plaintiff'. 
Winston,  Sr.,  for  the  defendants. 

Manly,  J.  We  think  the  Court  had  no  power  upon  mo- 
tion to  set  aside  the  fieri  facias,,  as  invoked  to  do,  in  the 
County  Court,  and,  of  course,  the  appellate  Court  has  none. 
It  was  issued,  it  seems,  on  a  justice's  judgment,  Bennett  v, 
Taylor  and  wife,  which  liad  been  transferred  from  the  county 
of  Wake  to  the  county  of  Granville,  nnder  the  provisions  of 
the  Rev.  Code,  chap.  62,  sec.  20,  It  was  levied  upon  the  inter- 
est of  the  defendants  in  a  parcel  of  land,  returned  to  the 
County  Court,  with  notice  of  the  fact  to  the  defendants.  The 
judgment  of  the  justice  was  then  affirmed,  a  venditioni  or- 
dered— issued — executed  and  returned.  The  County  Court 
was  then  moved  to  set  aside  the  fi.  fa.  on  the  justice's  judg- 
ment. The  motion  was  over-ruled  and  an  appeal  taken  to  the 
Superior  Court — the  motion  there  renewed  and  sustained  and 
an  appeal  to  this  Court. 

We  are  not  aware  of  any  principle  upon  which  such  a  mo- 


DECEMBER  TEEM,  1860.  283 

Bennett  v.  Taylor. 

tion  can  be  sustained.  The  fieri  facias  complained  of,  is 
part  of  tlie  case  that  belonged  to  the  jurisdiction  of  the  jus- 
tice. It  was  not  returned  to  the  Court  for  review,  as  upon  a 
writ  of  error,  but  placed  there  in  consequence  of  the  levy  on 
land,  and  in  obedience  to  a  statute,  whicli,  in  such  case,  re- 
quired pi'oceedings  to  subject  land  to  the  payment  of  debts, 
to  be  of  recoid.  The  proceedings,  therefore,  up  to  the  levy, 
are  the  complete  and  unreversed  proceedings  of  a  separate 
tribunal.  The}'  are  placed  in  tlie  Court,  not  for  the  pui'pose 
of  being  reviewed,  but  to  put  on  record  ulterior  proceedings. 

The  motion,  therefore,  in  substance,  is  to  amend,  in  one 
court,  the  process  of  another.  This  is  obviously  improper. 
If  upon  return  of  the  levy  to  Court,  tlie  justices'  proceedings 
couhl  be  considered  in  fieri  and  unfinished,  yet,  before  the 
motion  M'as  made,  there  \vas,  again,  a  complete  record — a 
judgment — writ  oi venditioni  exj)07ias — sale — and  return  ;  and 
there  was  no  power  in  the  Court  to  amend  the  process,  upon 
motion,  and  thus  to  affect  interests  that  had  sprung  up  under 
it.  This  was  held  in  the  case  of  tlie  Oa^pe  Fear  Banh  v.  AYH- 
liamson^  2  Ire.  Kep.  147,  and  laid  down  as  an  established 
principle  in  PhilUpse  v.  lUejdon^  Busb,  Rep.  380. 

The  case  manilestly  differs  from  one  in  which  the  amend- 
ment is  to  make  the  record  conform  to  the  truth,  which  a 
court  has,  at  all  times,  power*to  do  in  respect  to  its  own  re- 
cords. It  also  differs  from  the  power  exercised  to  quash  a  writ, 
that  has  been  issued  improperly,  leaving  a  person  whose  in- 
terest is  supposed  to  be  affected,  to  look  for  ]-edress  to  the 
pai'ty  who  wrongfully  sued  it  out.  The  case  of  Ashe  v. 
Streator  decided  at  this  term,  (ante  25(),)  is  a  case  falling  un- 
der the  former  class,  and  that  oi  Adains  v.  Shudlioood^  (ante 
258.)  under  the  latter. 

Wo  have  considered  the  case  only  as  a  motion  to  set  aside 
or  vacate  Xlmfi.  fa.  on  the  justice's  judgment,  which  was  the 
motion  made  in  the  County  Court,  and  from  the  decision  of 
wdiich,  the  appeal  was  taken.  In  the  Superior  Court,  it  seems 
other  motions  were  made,  viz.,  to  set  aside.     1.  Tlie  judg- 


284  IN  THE  SUPREME  COURT. 

State  V.  McDaniel. 

ment  then  of  record.  2.  The  order  for  a  venditioni  exponas^ 
and  3.  The  venditioni  exponas  itself. 

Assuming  that  the  motions  were  over-ruled,  which  does  not 
expressly  appear,  there  was  no  appeal  by  Taylor  and  wife, 
and  the  decision  of  them,  therefore,  has  not  been  brought 
here  for  re-examination.  They  are  no  part  of  the  case  now 
in  this  Court.  It  may  not  be  improper  to  sa}',  however,  that 
the}'  are  manifestly  subject  to  the  objections  already  noticed 
in  respect  to  the  other  motion. 

It  will  be  perceived  also,  that  we  have  considered  this  case 
simply  in  relation  to  the  power  of  amendment,  and  not  as  to 
the  force  and  effect  of  the  proceedings,  and  the  sale  in  pur- 
suance of  them,  or  as  to  the  effects  of  the  payments,  which 
are  alleged  to  have  been  made  in  satisfaction  of  the  judgment, 
before  the  venditioni  exponas  was  executed.  These  are  ques- 
tions not  properly  before  us  upon  this  record,  and  we  do  not 
consider  them. 

The  judgment  of  the  Superior  Court  should  be  reversed, 
and  that  of  the  County  Court  affirmed. 

Pee  Curiam,  Judgment  reversed. 


STATE  V.  A.  P.  McDANIEL. 


A  road  only  one  mile  long,  and  from  ten  to  fifteen  feet  wide,  leading  from  a 
public  highway  to  a  church,  and  used  by  the  people  of  the  neighboi'hood 
for  sixty  years  in  going  to  and  from  the  church,  and  which  connected  with 
a  country  road  leading  to  a  mill  m  the  neighborhood,  and  to  a  railroad  sta- 
tion, but  which  had  never  been  under  the  charge  of  an  overseer,  nor  work- 
ed as  a  public  highway,  is  not  a  public  highway  so  as  to  subject  one 
to  indictment  for  obstructing  it. 

Tiiis  was  an  indictment  against  the  defendant  for  obstruct- 
ing a  public  highway,  tried  before  Saundp:rs,  J.,  at  Fall  Term,, 
1860,  of  Guilford  Superior  Court. 


DECEMBER  TEEM,  1860.  285 


State  V.  McDaniel. 


The  following  is  a  special  verdict  found  by  the  jury  in  the 
case. 

"  We  find  that  the  road  described  in  the  bill  of  indictment, 
hath  been  used  for  sixty  years  by  the  people  of  the  neiglibor- 
hood  of  Bethel  Church,  in  passing  from  an  established  and 
admitted  highway  to  and  from  Bethel  Church ;  that  the  dis- 
tance from  tiie  admitted  highway  to  the  Church  is  one  mile  ; 
that  this  road  is  connected  with  other  roads  leading  to  difter- 
ent  places  in  the  neighborhood,  and  with  another  country  road 
used  by  the  neighbors  in  getting  to  a  mill  in  the  neighbor- 
hood, and  to  the  McLean  station  on  the  North  Carolina  rail- 
road, for  the  last  four  or  five  years ;  that  the  road  was  from 
ten  to  fifteen  feet  wide,  not  wide  enough  at  some  places  for 
wagons  to  pass  each  other  on  the  path,  and  was  never,  to  the 
recollection  of  any  one,  under  the  charge  of  an  overseer,  or 
worked  on  as  a  public  road,  as  charged  in  the  bill.  If  the 
Court  should  be  of  opinion,  that  from  the  foregoing  facts,  the 
defendant  is  guilty  in  law,  we  find  the  defendant  guilty,  oth- 
erwise we  find  him  not  guilty." 

The  Court  being  of  opinion  with  the  defendant,  gave  judg- 
ment accordingly.  Solicitor  for  the  State  appealed  to  this 
Court. 

Attorneij  General,  for  the  State. 

No  counsel  appeared  for  the  defendant  in  this  Court. 

Manly,  J.  The  special  verdict  in  this  case  presents  the  en- 
quiry, whether  mere  use  of  a  way  or  road  by  the  people  of  a 
neighborhood  for  a  long  lapse  of  time,  to  go  to  church  and 
other  neighboring  places,  is  a  public  road.  The  road  does 
not  appear  to  have  been  laid  off  agreeably  to  the  provisions 
of  our  statute  law ;  it  is  not  of  the  width  prescribed  for  our 
highways,  and  it  has  not  been  treated  as  a  highway  by  the 
appointment  of  an  overseer  with  laborers  to  keep  it  in  repair. 
Upon  no  principle,  therefore,  of  whicii  we  are  aware,  can  it 
be  classed  among  the  public  roads  of  the  country  which  it 
becomes  indictable  to  obstruct. 


2S6  m  THE  SUPREME  COURT. 

State  V.  McDaniel. 

The  Code  declares  that  all  roads  laid  out  or  appointed  by 
the  General  Assembly,  or  by  order  of  court,  are  public  roads, 
and  roads  which  have  been  used  b}^  the  public  through  a  suf- 
licient  length  of  time  to  justify  the  presumption  of  a  lawful 
origin,  have  been  held  by  this  Court  to  be  public  roads  upon 
the  principles  of  the  common  law  ;  Woolard  v.  McCidlough, 
1  Ired.  Rep.  -±32 ;  State  v.  Hunter,  5  Ired.  369 ;  Davis  v. 
Ramsay^  5  Jones'  Rep.  236. 

But,  we  take  it,  in  respect  to  this  latter  mode  of  testing  the 
character  of  a  road,  that  the  use  by  the  pnblic  must  be  of 
such  a  nature  as  to  apprise  the  proprietor  of  the  land  that  it  is 
claimed  by  the  public  as  a  matter  of  right ;  as,  by  an  assump- 
tion of  jurisdiction  over  it  b}'^  the  court  which  is  charged  with 
the  repair  of  the  pnblic  ways,  or,  at  least,  by  some  other  une- 
quivocal act  or  acts  which  shall  guard  the  owner  against  the 
supposition  that  the  use  is  from  him  "of  special  favor." 

The  verdict  excludes  the  inference  that  this  way  was  used 
by  the  public  at  large  in  any  sense,  and  declares  it  was  used 
by  \\xQ^  i^eople  of  a  neighhor/wod  to  get  to  church,  ifec.  It  is 
not,  therefore,  a  public  road,  and  we  concur  w-ith  the  Superi- 
or Court  in  the  judgment  that  the  obstruction  of  it  is  not  in- 
dictable. 

From  the  finding  of  the  jury,  we  suppose  the  road  termina- 
ted at  the  church,  and  was,  therefore,  what  is  called  in  French 
phrase,  a  ''^ cul  de  sac.^^  It  is  difficult  to  conceive  of  a  high- 
way a  mile  long,  and  closed  up  at  one  end,  for  the  public  at 
large  cannot  be  in  use  of  it;  and  if  a  road  be  for  the  accom- 
modation of  particular  persons  only,  it  cannot  be  a  public 
road.  An  indictment  which  should  chai'ge  the  stopping 
'"  coriiiiiimem  mam  ad  ecolesiam  pro  parocliianis^''  would 
clearly  be  bad,  "for  then  the  enquiry  would  extend  no  fur- 
ther tlian  to  the  parishoners,  which  is  a  private  grievance  ac- 
cording to  what  is  said  by  Lord  Hale  in  Throiccr'^s  case  1 
Ventris  Rep.  208. 

This  opinion  is  irrespective  of  the  rights  of  the  Church,  or 
of  the  people  worshiping  at  that  place,  to  this  way  as  a  pri- 
vate easement,  or  to  the  rights  of  others  to  the  road  upon  a 


DECEMBER  TEEM,  1860.  287 


Mendenhall  v.  Mendenhall. 

similar  principle.  Of  this,  we  Scay  nothing,  becanse  a  viola- 
tion of  such  rights  is  redressed  by  private  actions,  and  not  by 
public  prosecutions. 

Per  Cukiam,  Judgment  affirmed. 


DELPHINA  E.  MENDENHALL  v.  JAMES  E.  MENDENHALL. 

Where  a  Avidow  qualified  as  executor  of  her  liusband's  ■\vill,  it  was  Jtchl  that 
she  could  not  al'terwards  dissent  froui  the  will  and  claim  dower. 

This  was  a  pkhtion  forBowiiK,  heard  before  Saunders,  J.,  at 
Fall  Term,  1800,  of  Guilford  Superior  Court. 

Geoi'ge  C.  Mendenhall  died  in  the  month  of  March,  1860, 
leaving  a  last  M'ill  and  testament  in  which  the  petitioner,  Del- 
phina,  is  named  as  executrix.  She  qualified  at  the  term  of 
the  county  court  next  after  the  death  of  her  husband,  which 
was  May  term,  1860.  At  August  term,  1800,  she  filed  her 
disseut  from  the  will.  The  testator  died  possessed  of  a  large 
real  estate,  and  this  petition  is  tiled  against  the  defendant  as 
heir-at-law,  and  prays  that  she  be  allowed  dower  in  said  lands. 

Upon  the  hearing  of  the  petition  and  answer,  his  Honor 
being  of  opinion  M'ith  petitioner,  gave  judgment  that  the  writ 
issue.     From  this  judgment  defendant  appealed. 

Graham  and  Foiole,  for  the  plaintiff. 
Movi'head  and  McLean^  for  defendaiit. 

Pkarson,  C.  J.  A  husband  dies  leaving  a  last  will  and  tes- 
tament, in  which  he  appoints  his  wife  sole  executrix.  She 
offers  the  will  for  probate,  and  qualities  as  executrix.  The 
question  is,  does  she  by  doing  so,  waive  her  right  to  dissent 
from  the  will  ?  or  can  she  afterwards  enter  her  dissent  and 


288  IN  THE  SUPREME  COURT. 

Mendenhall  v.  Mondenliall. 

claim  dower,  a  A'ear's  provision   and   distributive  share  as  if 
her  husband  had  died  intestate? 

This  Court  is  of  opinion  that  by  qualifying  as  executrix  and 
taking  on  herself  the  burthen  of  executing  the  will,  she  waiv- 
ed her  right  to  dissent. 

Our  conclusions  are  based  on  several  considerations,  all  or 
any  one  of  which,  it  seems  to  us,  are  sufficient  to  sustain  it. 

The  act  of  qualifying  as  executrix,  and  undertaking  ujjon 
oath,  to  carr}'  into  effect  the  provisions  of  the  will,  is  irrevo- 
cable. She  cannot  now  renounce  and  discharge  herself  from 
the  duties  thereby  assumed.  This  is  settled  law.  It  follows 
that  she  thereby  waived  any  right,  whicli  she  before  had, 
which  is  inconsistent  with  the  act  done  and  the  duties  assumed. 

The  right  to  dissent  is  inconsistent  with  her  act  of  qualify- 
ing as  executrix,  and  tlie  duties  thereby  assumed  in  this: 

1.  The  appointment  and  qualification  of  one  as  executrix, 
operates  as  an  assignment  in  law,  and  vests  the  whole  person- 
al estate  in  such  executor.  If  one  executes  a  writing  b}^  which 
he  appoints  A  B  his  executor,  that  is  a  will.  A  B  thereby 
becomes  the  owner  of  the  estate,  and  after  paying  off  the 
debts,  is,  by  the  common  law,  entitled  to  the  surplus. 

If  one  executes  a  writing  by  wliich  he  disposes  of  Jiis  pro- 
perty after  his  death,  without  appointing  an  executor,  that  is 
a  testament.  If  he  does  both,  that  is  appoints  an  executor, 
and  also  disposes  of  his  estate,  or  a  part  thereof,  that  is  "a 
last  will  and  testament."  The  executor  becomes  the  owner  of 
the  estate,  and  after  paying  off  the  debts  and  legacies,  is  en- 
titled by  the  common  law,  to  the  surplus.  Thus,  it  is  seen 
that  the  office  of  executor  is  deemed  in  law  of  great  impor- 
tance ;  it  draws  to  it  the  ownersliip,  control  and  management 
of  tiie  entire  personal  estate,  and  gives  a  right  (at  common- 
law)  to  the  surplus.  It  is,  therefore,  manifestly  inconsistent 
for  a  widow  to  claim  the  office  and  its  rights  and  incidents  un- 
der the  will,  and  at  the  same  time  to  enter  lier  dissent  and  claim 
dower,  year's  provision  and  a  distributive  share,  as  if  her  hus- 
band had  died  intestate  ;  in  other  words,  there  is  an  inconsis- 


DECEMBER  TEKM,  1860.  289 

Mendenhall  v.  Mendenhall. 

tency  in  claiming  the  office  imder  the  will^  and   at  the  same 
time  claiming  rights  as  if  there  was  no  will. 

2.  Upon  qualifying,  she  assumes  the  duty  and  undertakes 
on  oath  to  carry  into  effect  the  several  provisions  of  the  will, 
and  it  is  inconsistent,  afterwards,  to  do  an  act  which  defeats, 
or  in  a  great  degree  deranges  the  provisions  of  the  will  and 
disappoints  the  intention  of  the  testator  therein  expressed. 

3.  A  husband  having  entire  confidence  in  his  wife,  ap- 
points her  the  executrix  of  his  will,  and  thereby  assigns  to 
her  the  title  to,  and  the  right  to  control  and  manage  his  whole 
estate;  can  she,  in  good  taith,  accept  the  trust,  and  after- 
wards set  up  a  claim  cvdverse^  and  which,  of  necessity,  pre- 
vents the  execution  of  the  trust  confided  to,  and  assumed  by 
her. 

4.  We  will  not  say  that  a  wife  is  called  on  in  the  life- 
time of  lier  husband,  to  make  known  to  him  that  she  is  not 
satisfied  with  the  provisions  of  his  will,  for  the  law  confers  on 
her  tlie  right  to  dissent  after  his  death  ;  but  m'c  do  say,  that 
if  she  intends  to  dissent,  and  wishes  to  avoid  all  imputation 
of  a  design  to  take  advantage  of  the  confidence  reposed  in 
lier,  she  should  renounce  the  right  to  qualify  under  the  will ; 
for,  by  doing  so,  she  enables  the  court  to  appoint  an  admin- 
istrator, with  the  will  annexed,  who  will  represent  and  take 
care  of  the  interest  of  the  estate  when  she  sets  up  claim  to  a 
year's  provision,  and  when  she  claims  to  have  her  distribu- 
tive share  allotted  ;  whereas,  by  accepting  the  appointment 
and  qualifying  as  executrix,  she  gets  the  whole  matter  in  her 
own  hands,  and  while  undertaking  to  represent  and  take  care 
of  the  interests  of  the  estate  under  the  will,  she  will  be  "  led 
into  temptation"  to  take  care  of  her  own  interest  a^^ms^  it. 

Pee  Curiam,        Judgment  reversed  and  the  petition  dis- 
missed. 


19 


290  IN  THE  SUPREME  COURT. 


Foust  V.  Trice. 


Doe  on  the  demise  of  DANIEL  FOUST  v.  GEORGE  W.  TRICE  ei  at 

Where  the  question  was,  whether  B,  who  occupied  the  land  in  controversy, 
did  so  as  the  tenant  of  A,  the  plaintiff,  and  B  testified  that  he  was  carried 
upon  the  premises,  and  left  there  fraudulently  and  treacherously,  in  order' 
to  get  him  off  of  another  tract  of  laud,  and  that  he  never  held  as  the  ten- 
ant of  A,  it  was  held  competent  for  him  to  state,  also,  in  order  to  strength- 
en his  testimony,  that  his  occupation  was  as  the  tenant  of  the  defendants. 

This  was  an  action  of  ejectment,  tried  before  Dick,  J.,  at  a 
Special  Term  (June,  I860,)  of  Oransje  Superior  Court. 

The  plaintiff's  lessor  exhibited  no  title,  but  alleged  that 
one  James  Pender,  the  actual  occupant  of  the  land,  was  his 
tenant,  and  insisted  that  the  defendants,  who  came  in  as  the 
landlords  of  Pender,  were  estopped  to  deny  his  (plaintiff's) 
title.  He  called  a  witness,  one  Hugh  Kirhpatrick^  M'ho  tes- 
tified  that  he  rented  the  land,  described  in  the  declaration  as 
containing  366  acres,  from  plaintiff's  lessor,  from  year  to 
year,  from  1853  to  1856,  inclusive ;  that  there  were  about 
twelve  acres  of  it  cleared,  and  within  this  space  were  the  walls 
of  a  log  cabin  without  a  roof;  that  he  was  to  pay,  as  rent,  one 
third  of  the  crops  produced  thereon,  and  had  the  privilege  of 
clearing  more  land,  and  in  the  event  of  his  doing  so,  was  to 
have  tlie  use  of  the  place  cleared  for  two  years,  with  the  sur- 
plus of  the  wood  therefrom  ;  that  at  the  end  of  the  year  1856, 
he  gave  up  his  lease  and  then  rented  six  acres,  only,  of  the 
cleared  land  for  the  year  1857 ;  that  in  January,  1854,  he 
(witness)  carried  Pender,  in  his  wagon,  from  a  house,  in  which 
he  had  previously  resided,  (of  which  witness  had  a  lease)  to 
and  upon  the  land  in  dispute,  and  placed  him  in  the  woods 
thereof,  about  500  yards  from  the  cleared  part ;  that  he  then 
told  Pender  that  he  might  erect  a  house  and  remain  there, 
and  if  lie  would  clear  any  of  the  land  for  him,  he  would  pa}'' 
him  for  it ;  that  Pender  assented  to  this,  and  built  a  cabin  at 
this  spot,  witness  sending  his  negroes  to  assist  him,  and  that 
he  had  remained  there  ever  since. 

On  his  cross  examination,  he  stated  that  he  did  not  know 


L>ECEMBEK  TEEM,  1860.  291 

Foust  V.  Trice. 

that  Pender  was  aware  where  he  was  to  be  carried  when  his 
household  goods  were  put  into  the  wagon  ;  that  he  (witness) 
had  proposed  to  him  a  week  or  two  before  that  time,  that  he 
should  remove  to  the  roofless  cabin  aforesaid,  to  which  Pen- 
der said  nothing.  He  further  stated,  that  Pender  had  paid 
ho  rent  to  himself  or  to  plaintiff's  lesssor  to  his  knowledge  ; 
tliat  he  had  done  a  little  clearing,  but  witness  had  never  paid 
him  any  thing  for  it. 

The  defendants  then  called  Pender,  who  testified  that  prior 
to  1854,  he  had  resided  in  a  house  leased  from  said  Kirkpa- 
trick  which  belonged  to  one  Woods  ;  that  Kirkpatrick  informed 
him,  he  wanted  this  house  for  another  tenant,  and  if  he  would 
give  it  up,  he  would  let  him  have  another  house  on  his,  (K's.,) 
own  land,  the  situation  of  which,  was  known  to  him  ;  that  he 
assented  to  this,  and  Kirk]->atrick's  wagon  moved  the  other 
tenant,  witli  his  goods,  to  tiic  house  where  he  was  living,  and 
took  in  those  of  him,  (Pender,)  Kirkpatrick  being  along  ;  but 
instead  of  carrying  him  to  the  house  promised,  in  spite  of  his 
remonstrances,  he  carried  him  to  the  tract  of  land  in  dispute; 
that  witness  then  requested  to  be  taken  to  the  roofless  cabin 
above  described,  but  this  was  refused,  and  his  family  and 
goods  were  put  out  in  the  woods,  at  the  place  described  by 
Kirkpatrick,  and  left  there  on  17th  of  January,  1854 ;  that 
witness  and  his  sons  made  boards  and  built  the  cabin  in  which 
he  has  since  lived,  without  any  aid  from  Kii-kpatrick  ;  that 
about  a  month  or  more  afterwards,  Kirkpatrick  proposed  to 
him  to  clear  land  for  him,  and  that  he  would  pay  him  for  it; 
that  he  had  done  some  clearing,  but  had  never  received  an}'- 
pay  for  it ;  that  when  Kirkpatrick  jnit  him  upon  the  land,  he 
said  to  him,  "  here  is  a  place  to  which  there  is  no  good  right; 
if  you  will  build  a  house,  you  may  be  able  to  stay  here,  per- 
liaps,  five,  six,  or  ten  years,  or  your  life-time  ;"  that  he  never 
had  any  communication  with  Foust  nor  Kirkpatrick,  except 
as  above  stated,  in  relation  to  tiie  occupation  of  the  land. 

The  defendants  offered  to  prove  title  to  the  land  in  them- 
selves, but  this  was  objected  to  and  ruled  out.  Defendants 
counsel  excepted.     They  then  offered   to  show  that  Pender, 


292  I^  THE  SUPKEME  COUKT. 

Foust  V.  Trice. 

subsequently  to  being  placed  on  the  land,  became  their  ten- 
ant, which  was  also  objected  to  and  ruled  out..  Defendants 
again  excepted.     The  writ  issued  in  I^ovember,  1857. 

His  Honor  instructed  the  jury  that  if  the  witness,  Pender, 
was  carried  by  Kirkpatrick,  upon  the  land  in  question,  and 
left  there  with  his  consent,  or,  if  after  he  was  there,  he  agreed 
to  be  the  tenant  of  Kirkpatrick,  either  would  estop  him  and 
the  defendants  from  denying  tlie  plaintiff's  right  to  recover, 
and  that  in  passing  on  the  question  of  his  consent,  they  might 
consider,  as  evidence  for  the  plaintiff,  the  fact  of  his  having 
remained  on  the  land. 

His  Honor  declined  giving  any  other  instructions.  De- 
fendants counsel  excepted  to  the  charge. 

Verdict  and  judgment  for  the  plaintiff,  and  appeal  by  the 
defendants. 

PhillipSy  for  the  plaintiff. 
Graham^  for  the  defendant. 

Battle,  J .  It  is  stated  in  the  bill  of  exceptions,  that  on  the 
trial  of  the  case,  the  lessor  of  the  plaintiff'  did  not  show  any 
title  in  himself,  but  put  his  right  to  recover  the  land  sued  for, 
upon  the  ground  that  James  Pender,  the  tenant  in  possession, 
was  his  tenant,  and  that  the  defendants  had  been  admitted  to 
defend  the  suit  as  landlords,  and  of  course  were  bound  by  the 
estoppel.  The  defendants  denied  that  James  Pender  ever  had 
been  the  tenant  of  the  plaintiff's  lessor,  and  the  question 
whether  he  had  ever  been  so,  was  the  first  and  main  point  in 
the  cause.  To  prove  that  he  had,  the  plaintiff's  lessor  exam- 
ined one  Hugh  Kirkpatrick  who,  if  believed,  clearly  proved 
the  tenancy  of  Pender;  but  to  rebut  his  testimony  the  defend- 
ants examined  Pender  himself,  and  contended  that  if  his  tes- 
timony were  taken  to  be  true,  then  he  never  was  the  tenant 
of  the  lessor  of  the  plaintiff.  For  tlie  purpose  of  strengthen- 
ing their  position,  the  defendants  offered  to  prove  that  after 
Kirkpatrick  had  carried  Pender  on  the  land  in  dispute,  the 
latter  had  consented  to  become  their  tenant,  and  had  thencefor- 


DECEMBER  TERM,  1860.  293 

Foust  V.  Trice. 

ward  continued  to  occupy  the  land  as  such ;  this  testimony- 
was  objected  to,  and  ruled  out  by  the  Court,  and  upon  the 
propriety  of  that  ruling,  depend,  in  our  opinion,  the  merits  of 
the  defendant'  sapplication  for  a  reversal  of  the  judgment,  and 
the  grant  of  a  'venire  de  novo.  The  counsel  for  the  plaintiff's 
iessor  contends  with  much  ingenuity,  that  it  being  stated  by 
both  the  witnesses  that  Kirkpatrick  had  carried  Pender  upon 
the  premises,  and  that  he  remained  there  continuously  until 
the  declaration  in  ejectmont  was  served  on  him,  he  was  ne- 
cessarily either  a  tenant  or  licensee  of  the  plaintiff's  lessor, 
and  that  therefore,  he  could  not,  until  he  surrendered  or  re- 
stored the  possession  to  the  lessor,  become  the  tenant  of  an- 
other, and  that  consequently,  the  testimony  offered  to  show 
that  fact,  was  immaterial,  and  as  such,  was  properly  rejected. 
In  order  to  ascertain  the  force  of  tliis  argument,  it  is  necessa- 
ry to  examine  the  testimony  in  relation  to  the  manner  in 
which  Pender  was  carried  upon  the  land  by  Kirkpatrick,  and 
as  the  defendants  had  the  right  to  have  the  credibility  of  Pen- 
der's account  of  the  transaction  submitted  to  the  jury,  it  is 
sufficient  for  us  to  examine  his  testimony  alone.  He  states 
expressly,  that  he  was  carried  on  the  land  and  left  there  against 
his  will.  Can  that  be  called  an  entry  by  him  as  a  tenant  or 
licensee  of  Kirkpatrick,  who  is  admitted  to  have  been  the  ten- 
ant of  the  plaintiff's  lessor?  We  think  not.  It  is  a  perver- 
sion of  terms  to  say  that  one  entered  upon  the  land,  or  into  the 
house  of  another  by  the  license  of  that  other,  when,  in  tact, 
he  was  carried  there  by  fraud  or  violence.  To  become  the 
tenant  or  licensee  of  the  person  who  had  perpetrated  the  fraud 
or  violence  upon  him,  he  must  afterwards  liave  willingl}'  con- 
sented to  do  so.  If  it  could  be  proved  tliat  he  consented  to 
remain  on  the  land,  not  with  the  consent  or  permission  of  the 
persoa  who  had  so  improperly  carried  him  there,  but  with  the 
jxirmission,  and  as  the  tenant,  of  some  olher  person  who  claim- 
ed to  be  the  owner  of  the  land,  we  think  the  idea  of  his  hav- 
ing become  the  tenant  or  licensee  of  tlie  first,  would  be  com- 
pletely repudiated.  Why  not  allow  such  proof.  It  certainly 
could  not  be  rejected  upon  the  ground  upon  which  a  lessee  is 


294  IN  THE  SUPREME  COURT. 

Borden  v.  Bell. 

barred  from  disputing  his  lessor's  title.  That  is  founded  upon 
the  principle  of  good  faith  and  privity  between  the  parties. 
Certainly  no  such  principle  can  apply  between  persons  whose 
apparent  connection  has  been  brought  about  by  violence  and 
treachery.  And  it  would  be  particularly  inapplicable  to  a 
case  where  the  person  who  committed  the  wrong  told  his  vic- 
tim that  the  land  upon  which  he  had  placed  him,  had  no  own- 
er, and  he  might  probably  ren:iain  upon  it  five,  six  or  ten 
years,  or  perhaps  his  life  time.  The  testimony  offered  and  re- 
jected, was  alledged  to  have  a  tendency  to  show  that  Pender 
had  agreed  to  become  the  tenant  of  the  defendants,  and  if  ad- 
mitted, might  have  shown  that  he  never  did  voluntarily  be- 
come the  tenant  or  licensee  of  any  body  else.  If  it  had  shown 
that,  then  the  Judge  could  not  have  instructed  the  Jury  that 
Pender's  continuance  on  the  land  was  evidence  from  which 
the  jury  might  infer  that  he  had  agreed  to  become  the  tenant 
of  the  plaintiff's  lessoi*. 

There  was  error  in  the  rejection  of  the  testimony,  for  which 
a  venire  de  nova  must  be  awarded. 

Per  Cdkiam,  Judgment  reversed. 


Boe  on  the  demise  of  LUCRETIA  BORDEN  v.  WILLIAM  P.  BELL. 

Where  one  rented  a  plantation  for  a  year,  and  having  joined  the  fences  of 
another  planiation,  owned  by  him,  to  the  fences  of  the  rented  place,  and 
then  at  the  end  of  the  year,  quit  v/ithout  removing  the  fence,  placed  there, 
and  after  five  years  entered  again,  it  was  held  that  he  was  not  entitled  to 
notice  to  quit,  before  bringing  suit  against  him. 

Action  of  e.tectment,  tried  before  Bailey,  J.,  at  Fall  Term, 
1860,  of  Carteret  Superior  Court. 

The  land,  in  dispute,  is  comprised  within  the  lines  E,  C,  D, 


DECEMBER  TERM,  1860. 


205 


Borden  v.  Bell. 


F,  on  the  west  side  of  Rocky  Run ;  (see  diagram.)  The  de- 
fendant had  j)urchased  from  Barclay  Borden  a  tract  of  land, 
called  the  Deer  Neck  Plantation,  A,  B,  E,  G,  which  he,  for 
a  while,  contended  ran  across  Rocky  run  and  embraced  the 
disputed  land,  but  afterwards,  he,  in   1852,  rented  the  land 


a,oxi**" 


E,  C,  D,  F,  from  the  guardian  of  the  plaintiff's  lessor,  Lucre- 
tia,  the  heir-at-law  of  the  said.  Barcia}'-  Borden.  AVhile  in 
this  occupation,  he  extended  the  fences  of  the  Deer  neck 
tract  across  Rocky  run,  and  joined  them  to  the  fences  of  the 
disputed  land.  He  quitted  the  possession  of  the  land  in  ques- 
tion, at  the  end  of  1852,  but  left  the  fences,  as  above  stated, 
extending  across  the  run,  in  which  situation  they  remained 
until  1858,  when  he  took  possession  again,  and  held  it  until 
he  was  sued  by  the  plaintiff  in  that  year.  The  plaintiff"'s  title 
to  the  land,  in  question,  was  established,  and  the  question 
was,  whether  there  was  such  a  tenancy  of  the  disputed  land, 
as  entitled  the  defendant  to  a  notice  to  quit,  before  a  suit  could 


296  m  THE  SUPREME  COURT. 

Borden  v.  Belt. 

be  brought.     The  Court  charged  the  jury,  that  there  was  not, 
and  defendant  excepted. 

Verdict  and  judgment  for  the  plaintiff.  Appeal  by  the  de- 
fendant. 

Hubbard  and  Green^  for  the  plaintiff. 

Haughton,  J.  W.  Bryan  and  Henry  C.  Jones,  for  deft. 

Manly,  J.  The  only  question  which  seems  to  be  present- 
ed by  this  record  is,  whether  there  was  a  tenancy  of  the  dis- 
puted land,  on  the  part  of  the  defendant,  which  entitled  him 
to  notice  before  suit.  We  concur  with  the  Court  below,  that 
there  was  not. 

It  seems  the  land  was  rented  to  defendant  in  1852.  After 
that,  it  does  not  appear  whether  it  was  occupied  until  1858, 
when  it  was  taken  possession  of  by  the  defendant.  The  de- 
fendant's fence,  in  1852,  extended  across  Rocky  run  upon 
the  land,  in  dispute,  and  joined  the  fence  on  that  side,  and  so 
continued  from  that  time  to  1858. 

From  the  facts  stated,  we  assume  that  the  land,  in  dispute, 
was  not  occupied  from  1852  to  1858  by  any  tenant,  but  the 
defendant's  fence  was  left  extended  across  the  run  as  in  the 
former  year,  and  the  question  is,  what  eflfect  had  this  fence  up- 
on the  relations  and  rights  of  the  parties.  We  do  not  perceive 
that  it  had  any.  The  superior  title  being  in  the  plaintiff's, 
lessor,  she  was  in  constructive  possession  of  the  land  and  fence 
until  1858,  when  defendant  again  entered  and  exposed  him- 
self to  an  action.  There  was  no  tenancy  of  the  land,  by  de- 
fendant, after  1852,  and  the  Court  properly  declined  giving 
any  instructions  upon  that  supposition. 

Pek  Cueiam,  Judgment  affirmed. 


DECEMBER  TEEM,  1860.  297 


Childers  v.  Bumo-arner. 


Doe  071  the  demise  o/ JAMES  R.  CHILDERS,  et  vx.  et  al.  v.  SIMON 
BUMGARNER. 

Where  the  ancestor  of  a  married  woman  died  seized  and  possessed  of  a  tract 
of  land,  it  was  held  that  the  descent  cast,  and  the  title  derived  from  her  an- 
cestor, according  to  the  law  of  this  State,  gave  her  an  actual  seizin,  and 
having  had  children  during  her  coverture,  her  husband  became  tenant 
by  the  curtesy  initiate,  and  was  subject  to  the  bar  of  the  statute  of  limita- 
tions. A  fortiori  is  such  the  case  where  one  of  the  wife's  co-heirs  made 
an  actual  entry ;  for  his  possession  was  that  of  all  the  heirs. 

The  children  of  one  entitled  to  an  estate  as  tenant  by  the  curtesy,  are  allowed 
seven  years  from  the  death  of  their  father  before  they  are  barred  by  the 
statute  of  limitations. 

Where  there  were  two  counts  in  an  action  of  ejectment  on  the  demises  of  sev- 
eral heirs-at-law,  and  a  general  verdict  was  rendered,  giving  nominal  dam- 
ages, but  on  a  point  of  law  reserved  it  was  determined  that  the  lessor  in 
one  of  the  counts  was  barred  by  the  statute  of  limitations,  it  was  held  that 
the  other  lessor  was,  nevertheless,  entitled  to  his  judgment. 

Action  of  ejectment,  tried  before  Dick,  J.,  at  Fall  Term, 
1860,  of  Alexander  Superior  Court. 

The  first  count  in  the  declaration  was  npon  the  demise  of 
James  Childers  and  his  wife,  Margaret,  the  latter  of  whom  is 
the  daughter  of  William  Munday,  and  the  second  count  is  on 
the  demise  of  Margaret  Jolly,  Allen  Jolly,  Jane  Jolly  and 
John  Jolly,  the  children  of  Jane  Jolly,  another  daughter  of 
AVilliam  Munday.  The  ancestor  of  the  plaintiff's  lessors  had 
title  to  the  land  in  question,  and  died  seized  thereof  in  1833, 
and  one  or  another  of  his  children  cultivated  the  premises  un- 
til the  year  1835,  when  the  defendant  entered,  and  has  had 
adverse  possession  ever  since,  with  a  color  of  title  reaching 
back  to  March,  1836.  Both  Mrs.  Childers  and  Mrs.  Jolly 
were  married,  and  had  children  in  the  life-time  of  their  father, 
and  the  latter  has  had  none  since  his  death.  Mrs.  Childers  is 
still  living,  but  Mrs.  Jolly  died  in  1841,  and  her  husband, 
John  Jolly,  died  in  May,  1853. 

Tills  suit  was  brought  16th  of  March,  1860.  It  was  insisted 
by  the  defendant  that  the  lessor,  Childers,  could  not  recover 
because  he  had  forborne  to  sue  the  defendant  who  was  in,  un- 


298  IN  THE  SUPKEME  COURT. 

Childers  v.  Bumgarner. 

der  a  color  of  title,  for  more  than  seven  years  after  bis  estate 
by  the  curtes}'  began,  and  as  to  the  second  count,  that  as  the 
defendant  was  in  the  adverse  possession  of  the  premises  in 
ISil,  when  Mrs.  Jolly  died,  John  Jolly,  the  husband,  acquir- 
ed no  estate  b}^  the  curtesy,  and  that  there  was  nothing  to 
prevent  the  statute  of  limitations  from  running  against  the 
heirs  of  Mrs.  Jolly  also. 

A  general  verdict  was  rendered  for  the  plaintiff  on  the  facts 
of  the  case,  for  sixpence  damages,  his  Honor  reserving  the 
question  of  law  as  to  the  right  of  the  lessors  of  the  plaintiff 
under  the  rules  of  law,  with  leave  to  set  aside  the  verdict  and 
enter  a  nonsuit  in  case  he  should  be  against  the  plaintiff  on 
the  points  reserved. 

Afterwards,  on  consideration  of  the  case,  his  Honor  gave 
judgment  for  the  plaintiff,  and  the  defendant  appealed. 

Boyden  and  Mitchell.,  for  the  plaintiff. 
W.  P.  Caldwell.,  for  the  defendant. 

Peaeson,  C.  J.  William  Munday  died  in  1833  ;  one  of  his 
sons  entered  and  continued  in  possession  until  1835  ;  since 
that  time,  the  defendant,  and  those  under  whom  lie  claims, 
have  been  in  the  adverse  possession  under  color  of  title. 

James  Childers,  and  his  wife,  Margaret,  who  is  the  daugh- 
ter of  William  Munday,  were  married  and  had  children  at 
the  time  of  his  death.  It  is  clear  that  Childers  became  enti- 
tled to  an  estate  as  tenant  by  the  curtesy  initiate.,  at  tlie  death 
of  William  Munday,  the  ancestor  of  his  wife.  The  descent 
cast,  and  the  title  derived  from  her  ancestor,  gave  his  wife  the 
actual  seizin,  and  not  a  mere  constructive  possession,  accord- 
ing to  the  established  doctrine  of  our  courts  ;  but,  in  addition 
to  this,  one  of  tlie  heirs-at-law  entered  and  held  possession  for 
two  3^ears  after  the  death  of  their  ancestor,  and  it  is  settled 
that  the  possession  of  one  tenant  in  common  is  the  possession 
of  all,  in  respect  to  third  persons.  So,  James  Childers  acquir- 
ed an  estate  as  tenant  by  the  curtesy  initiate,  in  1833,  and  be- 
inff  afterwards  evicted  in  1835,  a  right  of  action  then  accrued 


DECEMBER  TERM,  1860.  299 

Childers  v.  Bumgarner. 

to  him,  which  was  barred  by  the  subsequent  adverse  posses- 
sion of  the  defendant,  according-  to  the  distinction  between  an 
eviction  lefore  coverture^  where  the  right  of  action  is  that  of 
the  wife,  and  an  eviction  after  coverture^  where  the  right  of 
action  is  tliat  of  the  husband,  and  he  is  not  allowed,  by  join- 
ing his  wife,  to  protect  himself  from  the  operation  of  the  stat- 
ute of  limitations ;  Williams  v.  Lanier^  Basb.  Rep.  30.  It 
follows  that  the  plaintiff  was  not  entitled  to  recover  on  the 
count,  laying  the  demise  in  the  names  of  Childers  and  wife. 

The  same  reasoning  and  authority  shows  that  upon  the 
death  of  William  Munday,  Jolly,  who  had  married  one  of  his 
daughters,  and  had  children  by  her,  Avho  are  the  lessors  of 
the  plaintiff  in  the  other  count,  became  tenant  by  the  curtesy 
initiate,  and  upon  her  death,  in  1841,  became  tenant  by  the 
curtesy,  and  his  estate  did  not  determine  until  his  death,  in 
May,  1853,  at  which  time  the  right  of  entry  of  her  children, 
the  lessors  of  the  plaintiff,  j'^r6'(^  aconied,  and  the  statute  of 
limitations  did  not  begin  to  run,  as  against  them,  until  that 
date,  and  the  action,  liaving  been  commenced  in  March,  1860, 
is  within  time.  It  follows,  that  the  plaintiff  is  entitled  to  recov- 
er on  the  count  laying  the  demise  in  their  names. 

An  objection  was  made  in  this  Court,  that  as  the  verdict  is 
general,  finding  the  defendant  guilty  on  both  counts,  and  the 
plaintiff  was  not  entitled  to  recover  on  one  of  the  counts,  the 
judgment  ought  to  be  arrested.  It  is  true,  where  a  declara- 
tion contains  several  counts,  one  of  which  is  defective,  and 
there  is  a  general  verdict  for  the  plaintiff,  the  judgment  must 
be  arrested,  although  all  the  other  counts  be  good  ;  whereas, 
if  one  count  in  an  indictment  be  good  and  there  is  a  general 
verdict,  judgment  \v\\\  not  bo  arrested,  altliougli  all  of  the  oth- 
er counts  are  bad.  The  reason  of  this  difference  is,  that  in  an 
indictment  the  jury  merely  finds  the  issue,  and  the  punishment 
is  fixed  by  the  court,  and  in  so  doing,  the  court  is  presumed 
to  reject  the  bad  counts  and  regulate  the  sentence  in  reference 
to  tlie  good  count  alone  ;  but,  in  a  civil  suit,  the  jury  not  only 
finds  the  issue,  but  assesses  the  damages,  and,  in  doing  so,  the 
defective  counts  are  considered,  and  influence  the  verdict  as 


300  IN  THE  SUPREME  COURT. 


Wilson  V.  Tatum. 


much  as  the  good.  This  principle  has  no  bearing  on  the  pre- 
sent case,  for  both  counts  are  good,  and  the  damages  are  nom- 
inal, so  that  the  judgment  and  the  amount  recovered  are  ex- 
actly the  same  as  the  plaintiff  would  have  been  entitled  to 
had  there  been  but  one  count,  and  the  verdict  in  respect  to 
the  other,  may  be  treated  as  surplusage. 

The  conclusion  of  the  Court  in  State  v.  Williams.  9  Ired. 
Rep.  151,  is  strictly  applicable:  "It  was  manifestly  of  no 
consetjuence,  whether  the  conviction  was  upon  any  one  or  all 
of  the  counts,  since  tlie  offences  were  of  the  same  grade  and 
the  punishment  the  same."  Here,  the  damages  are  the  same, 
and  tlie  judgment  is  the  same,  and  it  is  manifestly  of  no  conse- 
quence whether  the  verdict  was  upon  one  or  both  counts. — 
There  is  no  error. 

Per  Curiam,  Judgment  affirmed. 


JOHN  WILSON  V.  ELIJAH  TATUM. 

Words  charging  one  with  an  attempt  to  commit  a  felony,  however  odious, 
are  not  actionable  per  se. 

Where  a  declaration  contains  two  counts,  and  testimony  is  given  as  to  both, 
and  the  Judge  charges  as  to  both,  and  a  general  verdict  is  given  for  the 
plaintiff,  if  one  of  the  counts  be  defective,  or  an  error  has  been  committed 
as  to  one  of  them,  the  defendant  is  entitled  to  a  new  trial. 

Action  on  the  case  for  slander  and  for  malicious  prosecu- 
tion, tried  before  Bailey,  J.,  at  the  Fall  Term,  1859,  of  Wa- 
tauga Superior  Court. 

The  declaration  contained  two  counts,  one  for  words  spo- 
ken, charging  tiie  plaintiff  with  an  attempt  to  commit  besti- 
ality, and  the  other  for  taking  out  a  warrant  against  the  plain- 
tiff for  an  attempt  to  commit  bestiality. 

The  plaintiff  produced  a  warrant,  charging  as  stated  in  the 


DECEMBER  TERM,  1860.  301 

Wilson  V.  Tatum. 

declaration,  which  was  issued  on  the  affidavit  of  the  defend- 
ant. The  said  warrant  liad  been  returned  "  executed,"  and 
tlie  phiintitf  brought  before  a  magistrate  and  tried.  It  was 
shown  that,  on  examination,  he  was  discharged,  and  the  de- 
fendant ordered  to  pay  the  costs.  There  was  evidence  that, 
on  divers  occasions,  he  spoke  the  same  cliarge  against  the 
plaintifJ',  and  attempted  by  tlie  production  of  evidence,  to  es- 
tablish tlie  truth  of  the  charge. 

The  defendant's  counsel  took  the  ground,  tliat  the  warrant 
did  not  charge  any  offense,  but  was  a  nullitj',  and  what  was 
done  under  it  did  not  amount  to  a  prosecution.  Also  that 
the  words  spoken  were  not  slanderous,  and  called  on  the 
Court  so  to  instruct  the  jurj'. 

The  Court  declined  so  to  charge  tlie  jury,  but  went  on  to 
lay  down  the  rules  applicable  to  slander  and  malicious  pros- 
ecution generally,  and  particularly,  as  to  a  question  of  fact, 
whether,  in  a  vague  use,  on  one  occasion,  of  the  words  set 
forth,  the  defendant  meant  the  plaintiff.  Which  question  he 
left  tothe  jurj'.  Defendant's  counsel  excepted.  Under  these 
instructions,  the  jury  found  a  verdict  against  the  defendant 
for  $500.     Judgment  and  appeal  by  the  defendant. 

I^olk,  for  the  plaintiff*. 

Isolde  and  Crumj^ler^  for  the  defendant. 

Bati'le,  J.  The  plaintiff's  declaration  contains  two  coynts; 
one  for  words  spoken,  and  the  other  for  a  malicious  prosecu- 
tion. Testimony  was  given,  on  the  trial,  tending  to  support 
both  tliese  counts,  and  the  instructions  given  by  his  Honor  to 
the  jury  may  be  referred,  in  part,  at  least,  to  both  the  counts, 
and  the  verdict  of  the  jury  is  general.  Such  being  the  case, 
if  either  of  them  cannot  be  supported,  or  if  an  error  has  been 
committed  with  respect  to  either,  the  defendant  is  entitled  to 
a  new  trial ;  Mooreliead  v,  Broion^  G  Jones'  267.  Now,  a 
mere  attempt  to  commit  a  felony,  no  matter  how  heinous  the 
felony  may  be,  is  only  a  misdemeanor,  the  punishment  of 
which,    is    not   deemed   infamous,   therefore   an   accusation 


302  IN  THE  SUPKEME  COURT. 

Beaty  v.  Gingles. 

against  a  man,  of  such  an  oflense,  is  not  deemed  actionable 
2)67'  se,  and  cannot  be  made  so,  except  by  alleging  and  prov- 
ing special  damage.  The  count  for  words  spoken  cannot, 
then,  be  supported,  because  the  record  does  not  show  any 
allegation,  or  proof,  of  such  special  damage.  It  follows  that 
the  verdict,  which  is  general,  must  be  taken  to  have  been 
rendered  on  both  the  counts,  and  the  judgment  thereon  render- 
ed, is,  therefore,  erreneous,  and  must  be  reversed.  Had  there 
been  no  evidence,  nor  instructions  given,  a^^plicable  to  the 
first  count,  then  the  verdict  and  judgment,  though  general, 
would  be  regarded,  by  ns,  as  having  been  rendered  on  the 
second  count,  onl}^  and  we  should  have  affirmed  the  judg- 
ment ;  Jofies  V.  Cook,  3  Dev.  112;  /State  v.  Long,1  Jones,  24. 
But  as  the  case  stands,  the  judgment  must  be  reversed,  and  a 
•venire  de  novo  awarded. 

Per  Curiam,  Judgment  reversed. 


RUFUS  J.  BEATY  v.  CHARLOTTE  GINGLES  et  al,  Mc'rs. 

An  action  against  a  person  as  "  executor"  for  an  act  done,  or  a  contract  made 
by  him  after  the  death  of  his  testator,  cannot  be  sustained,  and  the  words 
"'  as  executor"  rejected  as  surplusage ;  as  may  be  done  where  the  action  is 
for  the  party  on  his  own  possession,  and  these  words  arc  improperly  in- 
serted. 

The  cases  Ilailey  v.  Wheeler,  4  Jones'  Rep.  159,  and  McKay  v.  Royal,  7  Jones' 
Rep.  24G,  cited  and  approved. 

This  was  an  action  on  the  case,  tried  before  Dick,  J.,  at 
Fall  Term,  1860,  of  Gaston  Superior  Court. 

The  plaintiffs  declared  for  a  deceit  and  false  warranty  in 
the  sale  of  a  slave  against  the  defendants  as  executors  of  Ed- 
ley  Gingles.  The  proof  was,  that  after  the  defendants  quali- 
fied as  executors  of  said  Gingles,  that  they  offered  the  slave  in 


DECEMBER  TERM,  1860.  303 

Beaty  v.  Gingles. 

question  at  public  sale,  and  that  plaintiff  became  the  purcha- 
ser. He  also  gave  evidence  of  the  unsoundness  of  said  negro, 
and  that  the  defendants  were  aware  of  it  at  the  time  of  the 
sale. 

Defendants  counsel  asked  his  Honor  to  charge  the  jur}^  that 
plaintiff  could  not  recover  against  them  in  their  representa- 
tive capacity,  but  that  if  they  had  practiced  a  fraud  or  deceit 
on  the  plaintiff,  in  the  sale  of  the  said  negro,  tliey  were  per- 
sonally responsible  for  it,  and  tliat  the  estate  of  their  intestate 
could  not  be  charged  therewith.  His  Honor  refused  so  to 
charge,  but  told  the  jury  that  if  they  believed,  from  the  testi- 
mony, that  the  negro  Avas  unsound  at  the  time  of  the  sale,  and 
that  defendants  were  aware  of  it,  and  did  not  disclose  it  to  tlio 
purchaser  at  that  time,  the  action  was  well  brought,  and  the 
plaintiff  was  entitled  to  recover. 

Verdict  and  judgment  for  the  plaintiff.  Appeal  by  the  de- 
fendants. 

No  counsel  for  plaintiff'  in  tliis  Court, 
Z.  K  T/tonipson,  for  the  defendants. 

Battle,  J.  Where  an  executor  sues  upon  the  possession  of 
bis  testator,  he  must  sue  as  executor,  because  he  must  make 
profert,  in  his  declaration,  of  his  letters  testamentary,  but  if 
he  sue  upon  his  own  possession,  he  must  sue  in  his  own  name, 
because  his  possession  has  fixed  him  with  assets.  If,  howev- 
er, he  sue  "as  executor"  when  the  action  is  brought  upon 
his  own  possession,  the  words  "as  executor"  are  considered 
as  mere  sui-plusage  ;  Ilornsey  v.  Dimocke^  Ventris  119  ;  Com. 
Dig.  Pleader,  (I.  D.  1) ;  Cottcn.  v.  Davis,  8  Jones'  Rep.  355. 
But  an  action  against  2l  ^q\'%ow  "as  executor"  for  an  act  done 
or  a  contract  made  by  him  after  the  death  of  his  testator,  can- 
not be  sustained;  for,  in  such  an  action,  he  must  be  sued  in 
his  individual,  and  not  in  his  representative  capacity,  and  the 
words  "  as  executor,"  cannot  be  rejected  as  surplusage.  This 
is  well  settled  by  the  case  of  Ilailexj  v.  Wheeler^  4  Jones'  Rep. 
159,  wlierc  the  subject  is  fully  discussed  ;  and  that  case  ha© 


304:  IN  THE  SUPREME  COURT. 


Howell  V.  Troutman. 


since  been  referred  to,  and  conlirnied  by  the  very  recent  one 
of  McKay  cfc  Devane  v.  Royal,  7  Jones'  Rep.  426. 

Pee  Cckiam,     Judgment  reversed  and  a  ve7iire  de  novo. 


JULIUS  A.  HOWELL  et  al  v.  HENRY  TEOUTMAK 

Where  an  alleged  testator,  in  a  paper  writing,  propounded  as  his  will,  devised 
and  bequeathed  certain  property  to  the  child  of  his  housekeeper,  a  white 
woman,  which  child  was  proven  to  be  a  mulatto,  but  which  the  mother  had 
induced  him  to  believe  was  his,  it  was  held  that  this  furnished  no  evidence  to 
support  the  allegation  that  the  will  was  obtained  by  fraud  and  undue  influ- 
ence. 

Tins  was  an  issue  of  devisayit  vel  non,  tried  before  Os- 
borne, J.,  at  Spring  Term,  1860,  of  Rowan  Superior  Court. 

The  paper  writing  purporting  to  be  the  last  will  and  testa- 
ment of  Jacob  Troutman,  deceased,  contained  the  following 
bequests  and  devises : 

"  Item  3d.  I  M'ill  and  bequeath  to  Ann  Allmond  two  hun- 
dred and  fifty  dollars,  provided  the  said  Ann  shall  live  with 
my  wife,  Polly,  and  assist  her  in  health  and  in  sickness;  and 
if  the  said  Ann  shall  faithfully  perform  her  duty  to  my  said 
wife  during  the  life  of  my  wife  or  widowhood,  then  at  the 
death  of  my  said  wife,  I  will  and  bequeath  to  the  said  Ann, 
five  dollars  more." 

"  Item  4.  All  the  ballance  of  my  estate  and  property  of  ev- 
ery kind  and  description,  including  my  gold  mine  and  every 
thing  else,  I  will  and  bequeath  to  Lucy,  the  infant  child  of  the 
said  Ann  Allmond,  and  if  the  said  Lucy  should  die  without 
lawful  children  or  child,  tlien  it  is  my  will,  that  all  I  have  will- 
ed to  the  said  Lucy,  shall  be  divided  between  the  children  of 
my  brothers,  David  Troutman,  John  Troutman,  and  my  sister, 
Sarah  Earnhart's  children." 


■;i 


DECEMBER  TEJRM,  1860.  305 


Howell  V.  Troutman. 


The  proponnders  of  the  alledged  M'ill  are  Ann  Alhnond 
and  the  children  of  David  Troutman,  John  Troutman  and  Sa- 
rah Earnhart,  mentioned  in  the  will.  The  caveator  is  a  brother, 
and  one  of  the  heirs-at-law,  and  next  of  kin,  of  Jacob  Trout- 
man, the  decedent. 

Tiie  formal  execution  of  the  pa])er  writing  by  the  said  Ja- 
cob Troutman  was  duly  proven  by  the  three  subscribing  wit- 
nesses, who  also  testified  that  in  their  o[)inion,  he  was  of  sound 
mind,  in  which  opinion  all  of  the  witnesses  concurred  on  the 
trial. 

It  M'as  in  proof  that  Jacob  Troutman  and  his  wife  were 
childless,  and  that  the  legatee,  Ann  Allmond,  had  lived  in  his 
house  from  1849  to  1858,  in  the  fall  of  which  year  he  died. 

One  of  the  subscribing  witnesses  testified  that  Lucy,  the 
child  of  Ann,  died  during  the  life  of  Jacob  Troutman ;  that, 
in  his  opinion,  she  was  a  mulatto;  that  Allmond,  the  motli- 
cr,  is  a  white  woman  ;  that  Jacob  Troutman  told  him  that  the 
child  was  his,  both  before  and  since  her  death,  and  accounted 
for  the  color  from  a  fright  which  Ann  Allmond  had  received 
while  enciente  ;  that  she  was  about  three  years  old  when  she 
died  ;  that  he  had  done  much  business  for  Jacob  Troutman, 
and  drafted  this  paper  writing;  that  when  it  was  done,  Jacob 
Troutman  sent  her,  Ann,  out  of  the  room ;  that  he  urged  upon 
him  to  leave  Henry,  the  present  caveator  something,  which 
he  declined  doing,  for  the  reason  that  Henry  would  spend  it 
in  litigation.  The  witness  stated  that  Jacob  had  become  dis- 
pleased with  Henry  because  of  some  lawsuit  they  had  had. 

James  Montgomery^  also  one  of  the  subscribing  witnesses, 
swore  that  he  had  no  doubt  the  child  was  a  half-blood  mulat- 
to; that  he  judged  from  its  color;  that  he  was  a  neighbor, 
and  had  frequent  opportunities  of  seeing  the  child ;  that  Ja- 
cob Troutman  believed  the  child  w^as  his,  said  he  knew  it  was, 
and  that  he  intended  to  make  a  lady  of  it 

Dr.  J.  P.  Cunningham  testified  that  he  was  a  practising 
physician  in  the  vicinity  of  Jacob  Troutman's  residence ;  that 
on  one  occasion  he  was  called  upon  by  Troutman  to  visit  the 
child  spoken  of;  that  when  he  arrived,  he  found  her  in  his 

20 


goe  IN  THE  SUPKEME  COURT. 


Howell  V.  Troutman. 


arms ;  thnt  he  called  her  "  daddy's  baby,"  and  that  the  child 
was  unquestionably  a  negro. 

J)7\  John  H.  Wilson^  a  practising  physcian  of  the  same  vi- 
cinity, testified  that  the  child  was  in  his  opinion,  a  mulatto, 
and  that  Jacob  Troutman  had  once  remarked  to  him  that  he 
loved  the  child  as  much  as  if  it  was  his  own,  that  Anne  had 
gone  out  and  picked  it  up  somewhere. 

J.  C.  Barnhart  swore  that  when  Anne  AUraond  was  preg- 
nant with  the  child,  he  was  a  justice  of  the  peace  in  the  coun- 
ty, and  issued  a  warrant  for  her  to  make  her  swear  to  the  fa- 
ther, or  give  bond  as  prescribed  by  law;  that  she  gave  the 
bond,  and  Jacob  Troutman  either  became  her  surety  or  pro- 
cured some  one  to  do  so,  he  did  not  remember  which  ;  lie  also 
said  that  Jacob  Troutman  was  a  man  of  sound  mind,  though 
very  illiterate. 

J.  M.  Long,  Esq.,  the  draftsman  of  the  will,  proved  that  af- 
ter the  death  of  the  child,  the  testator  applied  to  him  to  know 
whether  another  will  was  necessary  to  dispose  of  the  part  he 
had  left  for  the  child  ;  that  he  advised  him  that  it  was  not, 
but  that  the  property  would  go  over  to  his  relations  under  the 
provisions  of  the  existing  will. 

The  counsel  for  the  caveator  insisted  that  there  was  testi- 
mony to  be  submitted  to  the  jury  that  the  will  was  procured 
by  the  false  representations  and  undue  influence  of  Anne  All- 
mond. 

The  Court  charged  the  jury,  that  there  was  no  evidence  of 
such  influence  as  would  invalidate  the  will,  and  if  they  believ- 
ed the  testimony,  the  decedent  was  of  sound  mind  ;  also,  that 
the  paper  writing  was  properly  attested  and  executed.  Cav- 
eator's counsel  excepted. 

Verdict  for  the  propounders.    Appeal  by  the  caveator. 

hoyden,  for  the  propounders. 
LovCj  for  the  caveator. 

Battle,  J.  "We  concur  in  the  opinion  of  his  Honor  who 
tried  this  cause,  that  there  was  no  evidence  of  the  wilFs  hav- 


DECEMBER  TERM,  1860.  307 

Howell  V.  Troutman. 

iDg  been  procured  by  the  fraud  and  undue  influence  of  Ann 
Allraond  or  any  other  person.  It  was  abundantly  proved, 
and  is  conceded,  that  the  alleged  testator  was  of  sound  and 
disposing  mind  and  memory,  \vhen  he  executed  the  script 
which  is  propounded  for  probate  as  his  will.  The  only  cir- 
cumstance from  which  it  is  sought  to  be  inferred  that  he  execu- 
ted it  under  the  effect  of  fraud,  or  under  the  exercise  of  un- 
due influence,  is  that  Ann  Allmond,  his  housekeeper,  a  w^hite 
woman,  induced  him  to  believe  that  he  was  the  father  of  her 
mulatto  child.  Supposing  that  he  did  believe  the  child  was 
his,  and  that  the  mother  of  it  told  him  so,  there  is  not  the 
slightest  testimony  to  show  that  she  ever  even  asked  him  to 
make  a  will  in  favor  of  her  and  the  child,  or  that  she  knew, 
before  the  will  was  made,  that  he  intended  to  make  one,  or, 
afterwards,  that  he  had  made  it.  An  eminent  Judge  in  the 
Ecclesiastical  Courts  in  England,  (Sir  Joun  Nichol,)  said  in 
the  case  of  Williams  v.  Gaicde,  1  Ilagg.  Rep.  581,  "  that  the 
influence  to  vitiate  an  act,  must  amount  to  force  or  coercion, 
destroying  free  agency ;  it  must  not  be  the  influence  of  aflTec- 
tion  or  attachment ;  it  must  not  be  the  mere  desire  of  gratify- 
ing the  wishes  of  another ;  for  that  would  be  a  vevj  strong 
ground  of  support  of  a  testamentary  act."  In  the  present 
case,  what  influence  is  it  shown  that  Anne  Allmond  had  over 
the  alleged  tcstatoi',  amounting  to  force  or  coercion,  and  de- 
stroying his  free  agency  ?  None  whatever.  At  most,  it  is  said 
that  she  made  him  believe  that  he  had  begotten  a  child  by 
her,  which  evei'y  bod}^,  but  himself,  could  see  was  a  mulatto. 
Surely  that  alone  cannot  destroy  a  will  wliich  the  mother  is 
not  shown  to  have  had  the  slightest  agency  in  pi-ocui'ing.  It 
has  been  said  b}'  a  satirical  writer,  that  many  a  married  man 
fondles  children  as  his  own,  which  his  wiser  wife  knows  to  be- 
long to  another.  Would  a  will  in  favor  of  such  children  be 
set  aside  upon  the  ground  that  the  trusting  husband  had  been 
imposed  upon,  and  had,  on  that  account,  acted  under  undue 
influence?  Certainly  not ;  and  yet,  to  set  aside  the  present 
will,  for  the  cause  assigned,  would  be  almost  as  bad.  The 
truth  is,  that  the  old  man,  being  childless  by  his  wife,  took  a 


508 


IN  THE  SUPEEME  COUKT. 


Reeves  v.  Poindexter. 


strange  fancy  to  the  child  of  his  housekeeper,  and  whether  it 
were  his  or  not,  he  had  a  father's  love  for  it,  and  our  law  im- 
poses no  prohibition  upon  a  man  to  prevent  him  from  bestow- 
ing his  property  upon  the  object  of  his  affection.  Affection  or 
attachment,  as  Sir  John  Nichol  said,  "  would  be  a  very  strong 
ground  of  support  of  a  testamentary  act." 


Per  Cukiam, 


Judgment  affirmed. 


R.  E.  REEVES  et  al  v.  D.  A.  POINDEXTER. 

Where  A  swear^  that  B,  C  and  D  had  an  important  conversation  together, 
and  D  swears  that  no  such  conversation  toolv  place,  it  was  held  tliat  the 
rule  giving  preference  to  affirmative,  over  negative,  testimony,  does  not 
apply,  for  there  being  a  direct  contradiction,  the  jury  must  be  guided  by 
other  tests  in  ascertaining  the  truth. 

Tins  was  an  action  on  the  case  for  a  deceit  in  the  sale  of  a 
horse,  tried  before  Dick,  J.,  at  the  last  Fall  Term  of  Surry 
Superior  Court. 

The  plaintiff  proved  by  a  witness,  who  was  present  at  the 
trade,  that  the  defendant  told  plaintiff  the  horse's  eyes  were 
good  ;  that  he  would  not  M'arrant  the  horse,  but  that  his  eyes 
were  good  ;  that  at  one  particular  time,  which  he  mentioned, 
there  was  sornething  the  matter  with  his  eyes,  or  they  were 
hurt,  but  they  had  got  well  and  were  good,  and  that  he  would' 
not  take  a  cent  less  for  the  animal  on  account  of  his  eyes.  It 
was  proved  that,  at  the  time  of  t]ie  trade,  the  horse's  eyes 
were  unsound,  and  that  the  defendant  knew  it;  thougli  the 
eyes,  at  that  time,  looked  well.  It  was  also  proved  that  a 
short  time  after  the  trade,  the  liorse  became  totally  blind. 
The  defendant  introduced  two  witnesses,  who  swore  tliat  they 
were  present  at  the  trade,  and  that  they  heard  the  defendant, 
in  the  course  of  the  conversation  between  the  parties,  about 


DECEMBER  TERM,  1860.  309 

Reeves  v.  Poindexter. 

the  horse,  tell  the  plaintiff  that  the  horse's  eyes  were  unsound, 
that  they  were  subject  to  bad  spells,  and  he  would  not  war- 
rant them  ;  that  if  the  plaintiff  took  the  horse,  he  must  do  so 
at  his  own  risk.  These  witnesses,  for  the  defendant,  swore 
that  the  witness  for  the  plaintiff,  mentioned  above,  participa- 
ted in  this  conversation  about  the  horse's  eyes.  The  witness 
for  the  plaintiff'  was  then  recalled,  and  swore  that  he  was  pre- 
sent all  the  time  ;  that  he  did  not  hear  any  such  conversation 
as  to  the  unsoundness  of  the  horse's  eyes,  as  deposed  to  by 
defendant's  two  witnesses ;  that  he  did  not  believe  it  occur- 
red ;  that  if  it  had  occurred,  he  thought  he  would  have  heard 
and  recollected  it,  and  that  he  did  not  participate  in  any  con- 
versation of  the  character  stated  by  these  witnesses. 

His  Honor,  in  response  to  a  request  for  special  instructions 
from  the  defendant's  counsel  as  to  this  testimony,  said,  "  it 
was  a  rule  of  law,  that  where  two  witnesses,  of  equal  respec- 
tability, testified  as  to  a  fact — one  that  he  heard  or  saw  a 
thing,  and  the  other,  who  M^as  present,  that  he  did  not  see  or 
hear  such  thing,  that  the  testimony  of  the  witness  who  tes- 
tified affirmatively  was  to  be  preferred."  To  this  part  of  his 
Honor's  charge  the  plaintiffs'  counsel  excepted. 

Verdict  and  judgment  for  defendant.     Appeal  by  plaintiff. 

Crumple7\  for  the  plaintiffs. 
Boydeii,  for  the  defendant. 

Manly,  J,  Waiving  any  discussion  as  to  the  terms,  in 
which  the  rule  is  laid  down  by  the  Judge  below,  we  think 
that  the  rule,  itself,  was  not  properly  applicable  to  the  facts 
before  the  Court.  According  to  the  interpretation,  which  we 
put  upon  them,  they  do  not  raise  the  question  between  affir- 
mative and  negative,  but  between  contradictory  witnesses. 
And  the  true  question  was,  which  class  of  witnesses,  judging 
of  the  testimony  of  eacli  by  the  ordinary  tests,  the  jur}'^  would 
believe.  With  respect  to  the  rule,  it  is  clear  that  its  appli- 
cability to  any  state  of  facts,  must  depend  upon  whether  the 
negative  testimony  can  be  attributed  to  inattention,  error,  or 


310  m  THE  SUPREME  COURT. 

Reeves  v.  Poindexter. 

defect  of  memory ;  1  Stark.  517.     If  two  persons  admit  they 
were  in  a  room  together,  and  one  swears  that  while  there,  he 
heard  a  clock  in  the  room  strike,  and  the  other  swears  he  did 
not  hear  it,  it  is  a  case  for  the  application  of  the  rule,  accord- 
ing to  all  elementary  writers.     But  in  the  case  supposed,  if 
two  persons  were  placed  in  a  room  where  a  clock  was,  for  the 
express  purpose  of  ascertaining  by  their  senses,   whether  it 
would  strike  or  not,  a  variance  between  their  testimony  could 
not  be  well  attributed  to  mistake  or  inattention,  and  the  real 
question  would  be  as  to  the  credit  of  the  witnesses.     In  the 
case  before  us,  the  defendant  proves  by  a  witness,  that  the 
parties  held  a  certain  conversation,  in  which  a  witness,  pre- 
viously introduced  by  the  plaintiff,  participated,  and  plain- 
tiffs' witness,  being  recalled,  denies  that  any  such  conversa- 
tion was  held  ;  this  is  not  a  question  between  affirmative  and 
negative  testimon}^,  wherein  the  latter  may  be  ascribed  to  in- 
attention, but  it  is  a  question  between  witnesses  who  contra- 
dict each  other,  and  the  question  is,  to  which  side,  under  all 
the  circumstances,  is  credit  due.     It  is  the  duty  of  a  jury  to  re- 
concile testimony,  if  possible ;  especially  if  it  come  from  cred- 
ible sources.     Hence,  when  one  declares,  under  oath,  that  he 
heard  a  thing,  and  another,  who  was  present,  that  he  did  not 
hear  it,  if  the  matter,  in  question,  occurred  under  such  cir- 
cumstances as  to  account  for  the  negative  testimony  upon 
the  theory  of  inattention,  the  jury  will  be  able  to  reconcile 
the  two,  and  both  being  ciedited,  it  will  be  taken  that  the 
matter  occurred,  and  was  heard  by  one  and  not  by  the  other. 
This  is  the  basis  of  the  maxim,  that  affirmative  testimony 
is  entitled  to  more  weight  than  negative.     At  the  last  term  of 
this  Court,  the  maxim  was  recognised  and  approved  in  its 
application  to  a  state  of  facts,  somewhat  like  the  case  last  sup- 
posed :  A  class  of  witnesses  swore  that  a  slave  had  been  seen 
by  them  on  crutches  and  limping ;  another  class,  with  only 
the  same  opportunities  of  observation,  for  ought  that  appear- 
ed, swore  that  they  had  not  seen  him  on  crutches  or  limping; 
instructions  that  the   positive  wore  entitled  to  more  weight 
than  the  negative,  were  approved.     Both  being  equally  cred- 


DECEMBER  TERM,  1860.  311 

Thompson  v.  Cox. 

ible,  they  were  thus  reconciled  ;  Henderson  v.  Grouse^  7 
Jones,  623. 

But  in  our  case,  the  witnesses  are  not  reconcilable,  A 
swears  that  B,  C  and  D,  held  a  conversation  together.  D 
swears  that  no  such  conversation  was  held.  The  negative 
cannot  be  accounted  for,  on  the  score  of  a  want  of  observa- 
tion, any  more  than  the  positive.  The  witnesses  are  in  con- 
tradiction, and  their  credibility  must  decide  it. 

There  should  be  a  reversal  of  the  judgment,  and  a  venire 
de  novo. 

Per  Curiam,  Judgment  reversed. 


WILLIAM  THOMPSON  et  al  v.  WILLIAM  T.  COX  et  at 

Notice  is  not  required  to  be  given  to  the  creditors  of  a  deceased  person  on  an 
application  by  the  administrator  or  executor  to  sell  the  real  estate  for  the 
payment  of  debts,  Revised  Code,  chapter  46,  section  45,  &c. 

Nor  is  the  fund  raised  by  such  sale  under  the  control  and  direction  of  the 
court  making  the  order  of  sale. 

After  passing  the  order  for  the  confirmation  of  a  sale,  made  by  virtue  of  the 
statute.  Rev.  Code,  chapter  46,  section  45,  &c.,  the  jurisdiction  of  the  court 
is  at  an  end,  and  a  petition  to  open  the  biddings  under  such  sale,  will  not 
be  sustained. 

The  county  courts  have  no  jurisdiction,  by  bill,  at  the  suit  of  creditors,  to  con- 
vert a  purchaser  of  land  into  a  trustee,  on  the  allegation  of  fraud  and  collu- 
sion. 

The  powers  of  a  court  of  limited  jurisdiction  cunnot  be  enlarged  by  implica- 
tion. 

One  who  is  not  a  party  to  a  bill  in  equity,  cannot  appeal  or  petition  to  rehear, 
or  file  a  bill  for  a  review. 

This  was  a  petition  filed  in  the  County  Court  of  Johnston, 
in  the  names,  and  at  the  instance  of  the  creditors  of  one  Mi- 


312  IN  THE  SUPEEME  COURT, 

Thompson  v.  Cox. 

cajali  Cox,  against  his  administrator,  "William  T.  Cox,  and 
against  Nathan  B.  Cox,  to  set  aside  an  order  confirming  a  sale 
of  land  as  assets,  to  pay  debts. 

The  petition  sets  forth  that  the  petitioners  are  creditors  of 
the  defendant's  intestate,  Micajah  Cox;  that  he  was  indebted 
to  them  largely  beyond  the  value  of  his  personal  estate ;  that 
the  sale  made  by  the  defendant,  "William  T.  Cox,  under  the 
order  obtained  for  that  purpose,  was  made  by  collusion  with 
his  brother,  the  other  defendant,  Nathan,  at  much  less  than 
its  real  value  ;  that  sufhcient  notice  was  not  given  of  the  day 
of  sale,  and  very  few  persons  attended,  and  no  one  bid  except 
the  said  Nathan,  and  that  two  tracts  of  land,  worth  at  least 
ten  thousand  dollars,  were  bid  oif  by  him,  Nathan,  at  $2,500, 
and  that  there  was  an  understanding  between  the  brothers 
that  the  administrator  was  to  have  one  of  them  at  the  price 
at  which  it  was  bid  off;  that  it  was  falsely  I'epresented  by  the 
said  administrator,  to  the  County  Court  of  Johnston,  that  the 
said  land  had  been  sold  for  its  full  value,  and  he  had,  hy  such 
false  assurance,  induced  the  said  Court  to  confirm  the  sale ; 
that  if  the  said  sale  shall  stand,  the  plaintiffs  will  lose  most,  if 
not  all  their  debts,  as  it  is  understood  that  most,  if  not  all  the 
means  of  the  said  estate,  including  the  amount  received  on 
the  sale  complained  of,  are  exhausted.  The  petition  concludes 
as  follows : 

"  Your  petitioners,  therefore  pray,  for  the  reasons  above 
stated,  and  others  which  they  will  present  at  the  hearing  of  this 
petition,  that  the  order  confirming  the  said  sale  may  be  set 
aside,  and  a  resale  directed,  with  full  and  fair  opportunity  giv- 
en to  the  creditors  and  sureties  of  the  said  intestate  to  attend 
such  sale  and  make  the  said  lands  bring  a  fair  and  reasonable 
price.  To  this  end,  they  pray  that  a  copy  of  this  petition  to 
rehear  and  set  aside  the  said  order  or  decree,  may  be  served 
on  the  defendants,  and  that  your  petitioners  may  have  such 
other  and  further  relief  as  their  case  requires,  &c." 

The  defendants  answered  the  petition,  and  both  parties  took 
testimony,  but  as  the  consideration  of  the  case  in  this  Court 
is  confined  entirely  to  the  merits,  as  set  forth  in  the  petition, 


DECEMBER  TEEM,  1860. 


Thompson  v.  Cox. 


the  matters  therein  disclosed  arc  deemed  immaterial.  The 
QoxxnXj  Cowvt  pro  forma  dismissed  the  petition,  and  tlie  plain- 
tifts'  appealed.  The  Superior  Court  also  ordered  the  petition 
to  be  dismissed,  and  the  plaintiff's  appealed  to  this  Court. 

Miller^  for  the  plaintiffs. 

Stromj  and  F'owle,  for  the  defendants. 

Peaeson,  C.  J.  The  statute  ch.  46,  sec.  47,  Rev.  Code  re- 
quires that  "the heirs  and  devisees  or  otJier 2)crsons  interested 
in  said  estate,^''  shall  be  made  parties  to  the  petition  of  an  ex- 
ecutor or  administrator  to  sell  real  estate.  We  think  it  obvi- 
ous that  the  words  "  or  other  persons  interested  in  said  es- 
tate," were  intended  to  embrace  the  assignees  of  an  heir  or 
devisee,  that  is,  their  heirs  or  devisees  or  persons  taking  by 
purchase  or  alienation  within  two  years  after  the  qualiffcation 
of  an  executor  or  letters  of  administration  granted  ;  which 
conveyances  arc  made  void  against  creditors  or  executors  and 
administrators  by  sec.  61,  and  do  not  embrace  the  creditors 
of  a  deceased  debtor  ;  for  : 

1.  They  are  represented  by  the  executor  or  administrator 
who  made  the  application  for  the  license  to  sell  the  real  estate 
for  their  benefft,  and  the  only  adversary  interest  is  that  of  the 
heir  or  devisee  or  their  assignees. 

2.  The  creditors  may  not  be  known,  or  their  debts  ascer- 
tained. 

3.  Creditors  have  no  direct  interest  in  the  estate,  and  can 
only  reach  it  by  charging  the  executor  or  administrator  with 
the  proceeds  of  the  sale  as  assets. 

There  is  no  express  provision  in  the  statute  requiring  the 
sale  made  by  an  executor  or  administrator  to  be  reported  to  the 
court  and  be  confirmed.  It  ma}'^  be  that  the  49th  section  which 
omits  the  word  "license"  and  substitutes  that  of  "decree," 
and  requires  "  that  the  title  shall  be  made  to  the  purchaser 
hy  such  person,  and  at  suck  timen^  the  court  shall  prescribe," 
furnislies  sufficient  ground  for  the  inference  that  the  sale  ought 
to  be  re})orted   to,  and  confirmed  by,  tiie  court ;  yet,  in  the 


314  IN  THE  SUPREME  COURT. 

Thompson  v.  Cox. 

absence  of  some  express  provision,  we  are  not  at  liberty  to 
cany  the  construction  further,  and  infer  that  the  fund,  in  re- 
spect to  its  collection  and  mode  of  application,  is  to  be  under 
the  control  and  direction  of  the  court ;  for,  by  section  51,  it 
is  provided  "  the  proceeds  of  sale  shall  be  assets  in  the  hands 
of  the  executor  or  administrator  for  payment  of  debts,  &c., 
and  applied  as  though  the  same  were  the  proceeds  of  person- 
al estate."  It  follows  that  after  granting  a  license  or  decree 
of  sale,  and  the  order  confirming  the  sale,  and  to  make  title 
to  the  purchaser  is  passed,  the  court  has  nothing  more  to  do 
in  the  matter,  and  its  jurisdiction  is  at  an  end. 

Having  arrived  at  these  conclusions  in  regard  to  the  con- 
struction of  the  statute,  the  application  to  the  case  under  con- 
sideration, shows  that  the  proceeding  cannot  be  sustained. 

Viewed  in  the  light  of  a  petition  to  open  the  biddings, 
there  are  two  fatal  objections:  No  responsible  specific  offer 
is  made  in  respect  to  the  amount  and  no  assurance  given  that 
the  price  will  be  increased.  After  the  term  at  which  a  sale  is 
confirmed,  a  court  of  equity  in  the  case  of  a  decree  of  sale  or  for 
partition,  of  an  infant's  land  and  the  like,  where  the  fund,  in 
respect  to  its  collection,  distribution  and  application,  is  still 
under  its  control,  will  not  open  the  biddings;  Ashbeev.  Cow- 
ell^  Busb.  Eq.  158;  a  fortiori  the  court  cannot  do  so,  in  a  case 
where,  after  passing  the  order  of  confirmation,  &c.,  its  juris- 
diction is  at  an  end. 

Viewed  in  the  liglit  of  a  petition  to  rehear  it  cannot  be  en- 
tertained, because  the  petitioners  were  not  and  ought  not  to 
have  been  parties  to  the  original  proceeding.  One  who  is  not 
a  part}^,  cannot  appeal,  or  petition  to  rehear,  or  file  a  bill  of  re- 
view. This  is  settled,  according  to  the  practice  of  the  courts, 
and  no  precedent  to  the  contrary,  can  be  found. 

Viewed  in  the  light  of  a  bill  in  equity  to  convert  the  pur- 
chaser into  a  trustee,  on  the  allegation  of  a  fraudulent  collu- 
sion between  him  and  the  administrator  to  suppress  competi- 
tion— buy  the  land  at  a  sacrifice  and  divide  the  spoils,  and 
on  the  footing  of  fraud,  to  hold  them  liable  for  the  actual 
value  of  the  land,  instead  of  the  price  at  which  it  was  sold, 


DECEMBER  TERM,  1860.  315 

Thompson  v.  Cox. 

the  proceeding  cannot  be  entertained ;  because  the  County 
Court,  in  which  it  originated,  had  no  such  equity  jurisdiction. 
It  has  general  original  jurisdiction  in  causes  of  a  civil  nature 
at  the  common  Imo j  its  equity  jurisdiction  is  limited;  and 
depends  on  specific  statutor}^  provisions,  {Leary  v.  Fldchei\ 
1  Ire.  357,)  e.  g.,  "  petitions  for  filial  portions,  legacies  and 
distributive  shares,  matters  relating  to  orphans,  idiots  and  lu- 
natics and  the  management  of  their  estates ;"  Revised  Code, 
chap.  81,  sec.  5. 

Wliether  by  force  of  the  53rd  section  of  the  statute  under 
consideration,  which  subjects  to  sale,  on  the  application  of  an 
executor  or  administrator,  "  all  rights  and  interests  in  land, 
which  may  be  devised  or  would  descend  to  the  heirs,  and  all 
such  other  interests  in  real  estate  as  would  be  liable  in  a 
court  of  equity,  to  ^ye  applied  in  discharge  of  dehts,''^  has  the 
eft'ect  of  giving  jurisdiction  to  the  county  court  in  such  cases, 
is  a  question  not  now  presented  ;  but  it  is  certain  that  these 
matters  are  peculiarly  fit  to  be  dealt  with  by  a  court  of  full 
equity  powers,  and  the  interests  of  all  parties  will  be  best 
protected  by  having  the  rights  declared  by  a  decree  in  a  court 
of  equity,  before  tlie  land  is  exposed  to  sale.  This  section, 
however,  has  no  application  to  the  case  before  us ;  the  pow- 
ers of  a  court  of  limited  jurisdiction,  cannot  be  enlarged  by 
implication. 

Per  Curiam,  Order  below  affirmed. 


XoTE. — Since  the  last  Term,  Hon.  M.  E.  Manly,  who  had 
received  the  appointment  of  Judge  of  the  Supreme  Conrt 
from  tlie  Governor,  ad  intermix  was  permanently  elected  to 
that  office  by  the  Legislature. 

Hon.  Gi:oRGE  Howard,  Junior,  and  Hon.  R.  S.  French, 
who  had  been  appointed  ad  inte?'ii)i  to  the  Superior  Court 
])ench,  by  the  Governor,  were  permanently  elected  to  that 
office  by  the  Legislature. 


CASES  AT  LAW, 


ARGUED  AND  DETERMINED 


SUPREME  COURT  OF  NORTH  CAROLINA, 
AT  RALEIGH. 


JUjSTE  teem,  1861. 


HENRY  B.   NORMAN  v.  JOHN  DUNBAR. 

An  action  against  a  guardian  for  the  penalty  of  $200,  for  hiring  the  property 
of  his  ward  privately,  is  not  required  to  be  brought  in  the  name  of  the 
State,  but  is  properl}'  brought  in  the  name  of  an  individual  undertaking  to 
sue  for  the  same. 

Action  of  ])ebt  for  a  penalty,  tried  before  Heath,  J,,  at  the 
last  Spring  Term  of  Tyrrell  Superior  Court. 

The  action  was  brought  to  recover  from  the  defendant  $200 
lor  having,  as  guardian,  hired  the  property  of  his  ward  at 
private  hiring,  instead  of  hiring  it  publicly,  as  required  by 
the  Revised  Code,  chai)tcr  51,  section  26,  and  chapter  46,  sec- 
tion 20,  and  the  only  question  made,  was,  whether  the  action 

1 


318  IN  THE  SUPREME  COURT. 

Norman  v.  Dunbar. 

was  riglitl}'^  brought  in  the  name  of  the  present  plaintiff,  or 
should  have  been  in  the  name  of  the  State  of  North  Carolina. 
A  verdict  was  permitted  to  pass  for  the  plaintiff,  subject 
to  the  opinion  of  the  Court  on  the  question  above  stated, 
with  leave  to  set  aside  the  verdict  and  enter  a  nonsuit  if  his 
Honor  should  be  of  opinion  against  the  plaintiff  on  the  ques- 
tion reserved.  And  on  consideration  of  the  question  of  law, 
the  Court  was  of  opinion  that,  according  to  the  provisions  of 
the  Revised  Code,  chapter  35,  sections  47  and  48,  the  action 
should  have  been  in  the  name  of  the  State.  The  verdict  was 
therefore  set  aside  and  a  nonsuit  ordered,  from  which  judg- 
ment, the  plaintiff  appealed. 

Winston^  Jun.^  for  the  plain tift^ 
No  counsel  appeared  for  the  defendant  in  this  Court. 

Battle,  J.  We  do  not  agree  in  the  opinion  expressed  by 
his  Honor  in  the  Court  below,  that  the  suit  ought  to  have 
been  brought  in  the  name  of  the  State.  The  26th  section  of 
the  54th  chapter  of  the  Revised  Code,  prescribes  that  "  all 
sales,  hirings  or  rentings  by  guardians,  shall  be  made  and 
conducted  in  the  same  manner  and  under  the  same  rules  and 
regulations,  and  the  same  penalties  for  disobedience  as  pre- 
scribed for  sales  made  by  administrators."  It  is  admitted 
that  a  penalty  was  incurred  by  the  defendant,  as  guardian, 
for  a  violation  of  the  provisions  of  this  section,  and  the  only 
question  is,  in  whose  name  is  it  to  be  recovered.  We  think 
the  reference  to  the  act,  in  relation  to  administrators,  makes 
that  the  rule,  not  only  as  to  the  amount  of  penalty,  but  also 
as  to  the  person  who  is  to  sue  for  the  same,  and  the  use  to 
which  he  is  to  apply  the  recovery.  By  turning  to  that  act, 
then,  we  find  that  the  penalty  given  for  its  violation  is  ivio 
hundred  dollars,  which  is  to  be  forfeited  and  paid  "  to  any  per- 
son suing  for  the  same."  The  forfeiture  thus  prescribed,  clearly 
creates  an  action  popular,  which  has  always  been  brought  in 
the  name  of  the  person  who  thought  proper  to  sue  for  the  pen- 
al ty»    If  the  recovery  were  for  his  sole  use,  his  name,  alone, 


JUNE  TERM,  1861.  319 

Norman  v.  Dunbar. 

appeared  as  plaintiff  in  the  suit ;  bnt  if  part  of  the  recovery 
were  given  to  the  State,  then  the  action,  although  in  his  name, 
was  called  a  qui  tarn  action,  because  it  %vas  stated  in  the  writ 
and  declaration,  that  he  sued  as  well  for  the  State  as  for  him- 
self. Qui  tarn  actions  for  usury  have  always  been  so  brought, 
because  the  statute  gives  the  penalty,  "  tlie  one  moiety  to  the 
State  and  the  other  to  him,  who  will  sue  for  the  same." 

The  rule  thus  established,  for  the  manner  in  which  suits  for 
penalties  are  to  be  brought,  is  not  varied  by  the  new  23rovisions 
contained  in  the  -ivth  and  48th  sections  of  the  35th  chapterof 
the  Revised  Code.  These  sections  prescribe  that  "  where  a 
penalty  may  be  imposed  by  any  law  passed,  or  hereafter  to 
be  passed,  and  it  shall  not  be  provided  by  thejaw  to  what 
person  the  penalty  is  given,  it  may  be  recovered  by  any  one 
who  will  sue  for  the  same  and  for  his  own  use,"  and  "  when- 
ever any  penalty  shall  be  given  by  statute,  and  it  is  not  pre- 
scribed in  whose  name  suit  therefor  may  be  commenced,  the 
same  shall  be  brought  in  the  name  of  the  State."  "We  can- 
not believe  that  these  provisions  were  intended  to  apply  to 
actions  popular,  that  is,  to  actions  expressly  "  given  to  any 
one  who  Mill  sue  for  the  same."  The  rule,  applicable  to  cases 
of  this  kind,  was,  as  we  have  already  seen,  well  established 
and  uniformly  adopted  in  practice.  There  was  another  class 
of  cases  where  a  penalty  was  annexed  to  a  specified  violation 
of  the  law,  without  sajang  to  whom  it  should  be  forfeited  and 
paid  ;  or  who  might  recover  it.  Instances  of  both  classes  are 
to  be  found  in  the  act  contained  in  the  Revised  Code  con- 
cerning "  marriage."  The  6th  section  of  the  act  (see  ch.  68) 
gives  a  penalty  of  two  hundred  dollars  for  the  ofiences  there- 
in mentioned,  "one  half  to  the  use  of  him  who  will  sue  for 
the  same,  and  the  other  half  to  the  use  of  the  county  wherein 
the  offence  is  committed."  While  the  13th  section  says,  that 
for  the  otfence  therein  referred  to,  "  the  person  so  offending  shall 
forfeit  and  pay  one  thousand  dollars."  Under  the  latter  sec- 
tion the  suit  must,  undoubtedly,  be  brought  in  the  name  of  the 
State,  but  the  person  who  brings  it  will,  by  virtue  of  47th  and 
48th  sections  of  the  35tk  chapter  of  the  Revised  Code,  recov^ 


320  IN  THE  SUPEEME  COUET. 

Willey  V.  Eure. 

er  the  penalty  for  his  own  use,  (see  Ca7Von  v.  Rogers^  6  Jones 
240).  It  is  equally  clear,  in  our  opinion,  that  the  penalty 
given  by  the  6th  section  of  the  68th  chapter,  must  be  brought 
in  the  name  of  the  person  who  sues  for  it,  inserting,  though, 
the  qui  tarn  clause,  because  a  part  of  the  recovery  is  given  to 
the  county  wherein  the  offence  was  committed. 

The  result  of  our  opinion  is,  that  the  judgment  of  nonsuit 
must  be  reversed,  and  a  judgment  be  entered  in  favor  of  the 
plaintiff  for  the  penalty  of  two  hundred  dollars,  according  to 
the  verdict  of  the  jury. 

Pee  Curiam,  Judgment  reversed. 


STATE  ON  THE  KELATION  OF  JOHN  WILLEY  vs.  MILLS  H.  EURE, 

et.  al. 

In  an  action  of  debt  on  a  sheriff's  bond  for  the  escape  of  a  debtor  imprison- 
ed under  a  ca.  sa.,  the  jury  are  not  bound  to  give  the  whole  sum  due  from 
such  debtor,  but  should  give  the  damages  really  sustained  by  the  escape. 

(Case  of  Governor  v.  Matlock,  1  Hawks'  Rep.  425,  cited  and  approved.) 

This  was  an  action  of  debt  on  the  oiScial  bond  of  a  sheriff, 
tried  before  Heath,  J.,  at  the  last  Spring  Term  of  Gates  Su- 
perior Court. 

The  suit  was  brought  against  the  sheriff  and  his  sureties, 
for  the  escape  of  one  Eure,  who  had  been  arrested  by  the  de- 
fendant, Eure,  on  a  ca.  sa.  The  plaintiff  proved  the  bond  de- 
clared on,  and  showed  in  evidence  a  judgment  at  his  instance 
against  said  Eure — a  ca.  sa.  corresponding  with  the  judgment 
— an  arrest  by  the  sheriff'  under  the  ca.  sa.,  and  a  subsequent 
escape.  There  was  evidence  on  the  part  of  the  defendants 
that  Eure,  the  defendant  in  the  ca.  sa.,  was,  at  the  time  of 
such  escape,  and  has  been  ever  since,  wholly  insolvent.  A 
verdict  was  permitted  to  pass  for  the  amount  of  principal,  in- 


JUN^E  TERM,  1861.  321 

Willey  V.  Eure. 

terest  and  costs  of  the  judgment,  subject  to  the  opinion  of  the 
Court,  whether  more  than  nominal  damages  could  be  recov- 
ered, with  leave  to  the  Court  to  set  aside  the  verdict  if  he 
should  be  of  opinion  with  the  defendant ;  or,  to  direct  a  ver- 
dict for  nominal  damages ;  and  that  the  plaintiff  be  permit- 
ted to  submit  to  a  nonsuit. 

On  consideration  of  the  question  reserved,  the  Court  order- 
ed the  verdict  to  be  reduced  to  sixpence,  upon  which  the 
plaintiff  submitted  to  a  nonsuit  and  appealed. 

W.  N.  11.  Smith,  for  the  plaintiff. 
W.  A.  Moore,  for  the  defendants. 

Battli:,  J.  The  remedy  at  common  law  against  a  sheriff 
for  the  escape  of  a  person  taken  by  him  under  a  capias  ad 
satisfaciendum,  is  by  an  action  on  the  case,  in  which  the  jury 
may  give  such  damages,  as,  upon  the  proofs,  they  may  think 
the  plaintiff  entitled  to.  This  rule  prevails,  whether  the  es- 
cape be  voluntary  or  negligent;  the  onlj^  difference  between 
the  two  kinds  of  escape  being,  so  far  as  the  liability  of  the 
sheriff  is  concerned,  that  when  sued  for  a  negligent  escape, 
he  may,  if  lie  can,  allege  and  prove  a  recaption  upon  fresh 
pursuit.  The  statute  of  13  Ed.  1,  ch.  11,  which  was  in  sub- 
stance re-enacted  by  our  act  of  1777,  (ch.  118,  sec.  10  and  11 
of  the  Rev.  Code  of  1820,)  gives  an  action  of  debt  against  the 
sheriff  who  shall  take  the  body  of  any  debtor  in  execution, 
and  shall  wilfully  or  negligently  suffer  such  debtor  to  es- 
cape, and  the  plaintiff  in  such  action  shall  recover  all  such 
euras  of  money  as  are  mentioned  in  the  execution,  and  dam- 
ages for  detaining  the  same.  See  Rev.  Code,  ch.  105,  sec.  20. 
It  is  clearl}'-  settled  that  in  the  action  of  debt,  thus  given,  the 
recovery  shall  be  the  same,  whether  the  escape  be  voluntary 
or  negligent.  See  the  case  of  Adams  v,  Turrentine,  8  Ired. 
Rep.  147,  where  the  subject  is  fully  discussed.  The  action  of 
debt  given  by  the  statute,  does  not  take  away  the  common 
law  right  of  suing  in  case,  but  is  a  cumulative  remedy,  which, 
however,  from  its  greater  efficiency,  has  almost,  if  not  entire- 


322  IN  THE  SUPREME  COUET. 


Willey  V.  Eure. 


ly,  superceded  the  other  in  practice.  Such  being  the  respon- 
sibility of  the  sheriif,  when  sued  in  debt  for  the  escape  of  a 
debtor  taken  in  execution,  it  is  contended  for  the  plaintiff,  in 
the  present  case,  that  it  onght  to  be  the  same  when  the  action 
is  brought  upon  the  bond  of  the  sherifi'  against  him  and  hi& 
sureties,  because  the  bond  is  given  as  a  security  to  the  public, 
against  iiis  official  delinquencies  and  the  remed}'-  on  it  should 
be  commensurate  with  the  utmost  extent  of  his  responsibility. 
In  aid  of  this  argument,  it  is  insisted  that  if  the  action  of 
debt  be  sued  against  a  sheriff  and  a  recover}-  had  which  he 
fails  to  pay,  a  suit  may  then  be  brought  ujDon  his  bond,  in 
which  such  default  of  payment  may  be  assigned  as  a  breach, 
and  that  his  sureties  may  be  thereby  made  liable  for  tlie  debt 
of  the  escaping  debtor ;  and  it  is  inferred  that  to  avoid  such 
circuity  of  action,  a  full  recovery  ought  to  be  allowed  at  first, 
in  an  immediate  suit  upon  the  bond.  "Whether  the  plaintiff 
can  have  full  redress  upon  the  sheriff's  bond  by  this  circuity 
of  action,  we  shall  not  at  present  undertake  to  decide,  but  we 
are  precluded  by  authority  from  holding  him  entitled  to  it  by 
a  suit  in  the  first  instance  upon  the  bond.  In  the  case  of 
the  Governor  v.  Matlock.,  1  Hawks'  Rep,  -125,  it  was  decided 
that  in  a  suit  upon  a  sheriff's  bond  the  plaintiff  must  assign 
breaches  thereof  under  the  statute  of  8  and  9  Will.  3,  ch.  11, 
sec.  8.  (See  Rev.  Code,  ch.  31,  sec.  58,)  and  that  the  jury 
should  "  consider  the  damages  reall}''  sustained  by  the  escape; 
and  were  not  bound  to  give  the  whole  sum  due  from  the  ori- 
ginal debtor,  as  in  debt  upon  the  statute  of  West.  2." 

The  judgment  in  the  Court  below  was  in  accordance  with 
this  decision,  and  must  be  affirmed. 

Pee  Curiam,  Judgment  affirmed. 


JUNE  TERM,  1861.  323 


Cooper  V.  Cherry. 


JOSEPH  COOPER,  Chairman,  v.  J.  B.  CHERRY,  et  al 

Where  a  chairman  of  the  board  of  superintendents  of  common  schools,  on 
going  out  of  oIBce,  gave  his  own  note  instead  of  money  to  his  successor, 
and  after  a  lapse  of  two  years,  being  reappointed,  received  the  same  note 
back  as  part  of  the  school  fund,  and  gave  a  release  in  full  to  his  predeces- 
sor, it  was  held  that  on  his  subsequent  failure  and  inability  to  pay  such 
note,  he  and  his  sureties  were  liable  on  the  bond  last  given. 
.The  statute  of  1789,  barring  claims  not  sued  for  in  two  years,  does  not  protect 
an  administrator  unless  he  has  paid  over  the  assets  to  the  distributees,  and 
taken  refunding  bonds  as  well  as  advertised  in  conformity  with  the  act. 

(The  case  of  Goodman  v.  Smith,  4  Dev.  Rep.  450,  overruled  and  that  of 
Reeves  v.  Bell,  2  Jones'  Rep.  cited  and  approved.) 

Tins  was  a  proceeding  under  the  GGtli  chapter,  section  50^ 
of  the  Ilevised  Code,  tried  at  Spring  Term,  1861,  of  Bertie 
Superior  Court,  before  Heath,  J. 

It  was  a  motion  on  the  bonds  of  Josepli  B.  Clierry  as  chair- 
man of  tlie  board  of  superintendents  of  common  schools  of 
Bertie,  against  him  and  his  sureties.  The  motion  was  based 
on  three  bonds,  one  given  on  lOtli  of  February,  1852,  another 
on  18th  of  May,  1856,  and  the  other  on  17th  of  April,  1858. 
Cherry  continued  in  the  ofhce  until  April,  1861,  when  he  re- 
signed, and  Joseph  Cooper,  the  plaintiff,  was  appointed  and 
gave  bond. 

One  of  the  principal  questions  arising  in  the  case,  was  asta 
the  sum  of  fifteen  hundred  dollars,  which  Cherry  had  used  of 
tlie  school  fund.  He  had  been  chairman  several  years  previ- 
ous to  1853.  In  that  year,  Jonathan  S.  Tayloe,  was  appoint- 
ed to  the  office,  and,  in  lieu  of  cash,  he  took  Mr.  Cherry's  in- 
dividual note  for  $1500  without  security,  but  it  was  admitted 
that  at  that  time,  Mr.  Cherry  was  abundantly  good  for  that 
sum,  and  remained  so  until  1860 :  Mr.  Tayloe  retained  this 
note  until  1856,  when  Cherry  was  again  appointed  chairman 
of  the  board  of  common  schools,  and,  on  a  settlement  with 
Mr.  Tayloe,  he  received  his  own  note  as  so  much  cash,  and 
gave  Tayloe  a  release  in  full.  It  was  in  proof  that  Tayloe 
bad  been  empowered  by  the  superintendents  to  loan  out  this 


324  IN  THE  SUPEEME  COURT. 

Cooper  V.  Cherry. 

sum.  The  defendants  counsel  contended  that  neither  Cherry 
nor  his  sureties  M^ere  liable  for  the  sum  of  $1500  on  either  of 
the  bonds  above  described. 

Alfred  Eason,  one  of  the  sureties  of  Mr.  Cherry  died  in 
August,  1858,  and  the  defendant,  Mary  Eason,  qualified  as 
his  administratrix  at  l^ovember  term  of  Bertie  county  court ; 
she  advertised  at  the  court  house  door  and  two  other  public 
places  in  the  county,  for  all  persons  to  present  their  claims 
against  the  estate  of  her  intestate.  This  vras  done  within  two 
months  from  the  date  of  her  qualification. 

It  was  admitted  that  no  settlement  had  been  made  by  Mrs. 
Eason  with  the  distributees  of  her  intestate — that  no  refund- 
ing bond  had  been  taken,  but  that  the  estate  was  still  in  her 
hands. 

It  was  insisted,  that  as  to  Alfred  Eason's  estate,  the  demand 
was  barred  by  the  act  of  1789.  His  Honor  being  of  opinion 
that  the  $1500  was  covered  by  the  bond  of  1856,  gave  judg- 
ment accordingly  against  all  the  defendants. 

Defendants  counsel  excepted  and  appealed. 

Winsto7i,  Jr.,  for  the  plaintiff. 
Barnes,  for  the  defendants. 

Pearson,  C.  J.  The  position  assumed  by  the  defendants, 
that  in  respect  to  the  sum  of  $1500,  there  was  no  breach  of  the 
bond  of  1856,  because  the  default  occurred  in  1852,  and  was 
covered  by  the  bond  of  that  year,  is  not  tenable.  It  is  true 
that  the  default  in  respect  to  this  $1500  was  a  breach  of  the 
bond  of  1852.  It  is  also  true  that  Tayloe,  who  was  appoint- 
ed chairman  in  1853,  committed  a  breach  of  his  bond  by  re- 
ceiving as  cash  the  note  of  Cherry,  without  security,  in  pay- 
ment of  the  $1500,  for  which  Cherry  was  in  default ;  but  it  is 
nevertheless  true  that  the  breaches  were  cumulative  and  con- 
tinuing, so  that  when  Cheny  was  again  appointed  chairman 
in  1856,  and  then  received  the  same  note  as  cash,  and  execu- 
ted to  Tayloe  "  a  release  in  full,"  it  was  a  breach  of  the  bond 
then  executed.     I^o  argument  is  necessary  to  prove  that  a 


JUNE  TERM,  1861.  325 

Cooper  V.  Cherry. 

trustee  violates  his  duty  by  receiving  his  oion  note  as  cash, 
(which  note  is  still  unpaid)  and  executing  a  release  in  dis- 
charge of  tlie  amount  due  to  him,  as  trustee,  and  the  question 
is  not  at  all  affected  by  the  circumstance  that  the  note  had 
been  given  because  of  a  previous  default ;  for,  viewed  in  any 
light,  it  comes  within  the  express  words  of  his  bond,  and  he 
thereby  "  abused  the  trust  which  had  been  conlided  to  him 
by  his  appointment  as  chairman,"  and  for  the  consequences 
of  this  breach  of  trust,  those  who  vouched  for  him  as  sure- 
ties on  his  bond,  are  clearly  liable.  l]y  their  act  he  was 
placed  in  a  position  which  enabled  him  to  subtract  from  tlie 
school  fund  the  amount  in  question,  and  they  have  no  ground 
to  complain  because  they  are  required  to  indemnify  tlie  fund 
and  bear  the  loss. 

The  position  assumed  on  the  part  of  the  defendant  Eason, 
that  as  the  action  was  not  commenced  until  more  than  two 
years  after  she  qualified  as  administratrix,  she  is  protected  by 
the  4th  section  of  the  act  of  1789,  (according  to  the  construc- 
tion adopted  in  Goodman  v.  Smithy  4  Dev.  Rep.  450,)  al- 
though she  lias  not  paid  over  the  assets  to  the  distributees  and 
taken  refunding  bonds  as  required  by  the  2nd  section,  is  like- 
wise untenable.  If  the  authority  of  that  case  were  admitted, 
and  the  4th  section  treated  as  wholly  unconnected  with  the 
2nd  and  3rd,  and  as  strictl}'  a  statute  of  limitations,  it  would 
not  apply  to  this  case,  because  Cherry,  by  his  several  appoint- 
ments, was  chairman  continually  from  1856  up  to  1861,  and 
there  was  no  cause  of  action,  or  rather,  the  cause  of  action 
was  suspended  until  shortly  before  the  ]jreseut  proceeding 
was  commenced.  For  the  statute,  in  relation  to  the  school 
fund,  makes  it  tlie  duty  of  the  chairman  to  receive  and  sue 
for  the  fund,  and  during  that  time,  no  proceeding  could  be 
had,  as  Cherrj^  could  not  sue  himself,  and  it  is  settled  doctrine 
that  no  statute  of  limitations  can  begin  to  run  and  become  a 
bar  until  the  cause  of  action  accrues;  for  the  plain  reason, 
that  the  legislature  cannot  be  supposed  to  intend  to  require  a 
creditor  to  do  an  impossible  act  under  pain  of  having  his 
right  of  action  barred  ;  Jones  v.  Brodie,  3  Murph.  594 ;  God- 


126 


IN  THE  SUPEEME  COURT. 


Cooper  V.  Cherry. 


ley  V.  Taylor,  3  Dev.  Rep.  ITS,  where  the  doctrine  is  discuss- 
ed and  applied  to  the  act  of  1715,  barring  the  claim  of  all 
creditors  Avho  do  not  sue  withhi  aeven  years  after  the  death  of 
the  debtor ',  which  words  are  as  direct  and  positive  as  those 
used  in  the  section  under  consideration,  i.  e.  "  who  fail  to 
bring  suit  within  two  years  from  the  qualification  of  the  ex- 
ecutor or  administrator." 

We  will  not,  however,  put  the  decision  on  that  ground ; 
because  a  distinction  may  be  suggested,  inasmuch  as  the  bond 
is  payable  to  the  State,  and  the  circumstance  that  Cherry  con- 
tinued in  ofHce,  may  have  only  had  the  effect  to  suspend  the 
summary  proceeding  provided  by  the  statute,  and,  for  the  ad- 
ditional reason  that  the  case  of  Goodman  v.  Smith  is  opposed 
by  Reeves  v.  Bell.  2  Jones'  Rep.  254,  and  it  is  a  matter  of 
great  practical  importance  that  the  construction  of  the  statute 
should  be  settled  ;  as  cases  under  it  occur  on  the  circuits  al- 
most every  day. 

The  fact  of  there  being  these  opposing  cases  in  respect  to 
the  construction  of  the  act  of  1789,  shows  that  the  question  is 
of  some  difficulty,  and  by  a  perusal  of  the  opinion  delivered  in 
Reeves  v.  Bell,  it  is  obvious  that  the  attention  of  the  Court  had 
not  been  called  to  Goodman  v.  Smith.  We  have,  therefore, 
felt  it  to  be  our  duty  to  give  the  subject  a  serious  reconside- 
ration, and,  after  doing  so,  are  satisfied  that  the  construction 
established  by  Reeves  v.  Bell  is  the  true  one,  and  is  supported 
by  principle  and  also  by  authority. 

In  Reeves  v.  Bell,  it  is  decided  that  by  a  proper  construc- 
tion of  the  act  of  1789,  an  administrator  cannot  protect  him- 
self against  a  recovery  by  a  creditor  who  has  failed  to  sue 
within  two  years  from  his  qualification,  unless  he  has  deliver- 
ed the  assets  to  the  distributees  and  taken  refunding  bonds, 
so  as  to  give  the  creditor  a  remedy  over,  by  which  he  may 
reach  the  assets  in  their  hands. 

The  opinion  takes  a  comprehensive  view  of  the  subject,  as- 
suming that  the  several  enactments  of  the  same  statute  are  all 
to  be  taken  together,  and  to  be  so  construed  as  to  effect  the 
general  purpose  for  which  the  statute  was  made :  that  this 


JUNE  TEEM,  1861.  327 


Cooper  V.  Cherry. 


general  purpose  was  to  remedy  an  evil  growing  out  of  tlie  de- 
lay of  executors  and  administrators  in  settling  up  estates  and 
paj'ing  over  the  assets  remaining  in  their  hands  under  the 
pretext  of  debts  still  outstanding,  on  account  of  which  they 
were,  in  order  to  protect  themselves,  justified  in  retaining  the 
assets,  and  that  this  pi'ominent  purpose  of  the  statute  requir- 
ed the  administrator,  in  order  to  claim  the  protection  of  the 
statute  given  to  him  by  tlie  4t]i  section,  to  aver,  and  be  able 
to  prove,  tliat  he  had  complied  with  the  duty  imposed  on  him 
by  the  2nd  section,  and  not  only  paid  over  the  assets,  but  ta- 
ken a  refunding  bond,  so  as  to  enable  tlie  creditor,  under  the 
provision  of  the  third  section,  to  fix  the  amount  of  his  debt 
and  recover  the  same  by  scire  facias,  according  to  tlie  pro- 
ceeding thereby  provided. 

This  general  view  may  be  extended  and  made  more  par- 
ticular by  the  suggestion  of  several  positions,  all  of  which 
support  and  confirm  the  construction  established  by  that  case, 
and  are,  by  implication,  made  a  part  of  the  argument : 

1.  One  who  claims  the  benefit  of  any  instrument  must  aver 
and  prove  that  he  has  performed  all  the  acts  required  to  be 
done  by  him  for  the  benefit  of  the  other  party.  This  is  a  gen- 
eral principle  of  justice,  applicable  not  onl}'  to  contracts  be- 
tween individuals,  but  to  the  construction  of  statutes,  and  to 
treaties  between  independent  nations.  The  second  section  of 
the  act  of  1789  requires  executors  and  administrators,  after 
the  expiration  of  two  years  from  their  qualification,  to  pay 
over  the  undisposed  of  assets  to  the  legatees  or  distributees, 
and  to  take  a  refunding  bond  with  condition  to  pay  any  debt 
of  tlie  deceased,  "  which  shall  be  afterwards  sued  for  and  re- 
covered, or  otherwise  duly  made  to  appear."  The  third  sec- 
tion enacts  that  when  an  administrator  pleads  "  fully  admin- 
istered," and  the  fact  is  found  in  his  favor,  the  plaintiff  may 
fix  the  amount  of  his  demand,  and  sign  judgment,  and  there- 
upon issue  a  scire  facias  in  order  to  charge  tlie  i)arties  to  the 
refunding  bond.  The  fourth  section  enacts  that  any  creditor 
who  fails  to  sue  within  two  years  from  the  qualification  of  the 
executor  or  administrator,  "  shall  be  forever  barred  from  the 


328  IN  THE  SUPREME  COUET. 


Cooper  V.  Cherry. 


recovery  of  his  debt."  When,  therefore,  an  adrainistrator 
seeks  to  protect  himself  from  a  recover}'-  on  the  ground  that 
the  creditor  liad  failed  to  sue  within  two  3'ears  after  his  qual- 
ification, it  would  seem,  as  a  matter  of  course,  to  be  necessa- 
ry for  him  to  aver  that  he  had  paid  over  the  assets  and  taken 
refunding  bonds,  so  as  to  give  the  creditor  a  remedy  over  by 
scire  facias^  according  to  the  provisions  of  the  statute.  An 
administrator  is  required  to  take  refunding  bonds  for  the  ben- 
efit of  the  creditor,  and  surely,  it  is  with  an  ill  grace  that  he 
asks  to  be  protected  from  a  recovery  by  them,  when  he  has 
neglected  to  do  what  the  law  expressly  requires  him  to  do  for 
their  benefit. 

2.  The  evil  intended  to  be  remedied  by  the  act  of  1T89,  as  is 
manifest  from  its  enactments,  as  well  as  the  preamble,  was  the 
delay  on  the  part  of  executors  and  administrators  in  settling 
up  estates.  The  construction  adopted  in  Reeves  v.  Bell^  tends 
to  induce  a  discharge  of  this  duty,  and  thus  to  efi'ect  the  main 
purpose  of  the  statute,  whereas  the  construction  adopted  in 
Goodman  v.  Smith,  actually  holds  out  an  inducement  to  ex- 
ecutors and  administrators  not  to  perform  their  duty  by  giv- 
ing them  assurance  that  they  will  be  protected  whether  they 
settle  and  take  refunding  bonds  or  not. 

3.  When  the  act  of  1789  was  passed,  there  were  two  stat- 
utes of  limitation — the  general  statute  and  the  act  of  1715, 
barring  claims  against  the*  estates  of  deceased  persons  after 
seven  years.  So,  it  would  seem  there  was  no  particular  oc- 
casion or  necessity  for  another  statute  of  limitations.  Yet, 
the  construction  adopted  in  Ooodman  v.  Smithy  has  the  effect 
of  making  the  act  of  1789  a  mere  statute  of  limitations,  and 
the  4th,  which  is  clearly  a  subsidiary  section,  is  allowed  to 
override  all  the  others,  and  allowed  to  become  the  only  ope- 
rative provision  of  the  statute, 

4.  The  Court,  in  Goodman  v.  Smithy  seems  to  be  oppressed 
with  the  general  words  of  the  4th  section,  but  nevertheless 
refuses  to  allow  them  to  be  qualified  by  considering  them  in 
connection  with  the  other  sections,  when,  in  truth,  that  was 
the  only  way  of  solving  the  difficulty,  and  was  not  only  au- 


JUJ^TE  TEEM,  1861.  329 


Cooper  V.  Cherry. 


I 


thorised  by  tlie  rules  of  construction,  hut,  in  this  instance,  was 
aetnally  demanded,  becanse  the  third  section  fixes  the  mode 
in  which  the  execntor  and  administi-ator  shonkl  plead,  in  or- 
der to  protect  himself  against  the  recovery  of  a  creditor,  that 
is,  he  should  plead  "fully  administered,-'  and  his  plea  is  es-  < 
tablislied  by  proof  that  he  had  settled  at  the  expiration  of 
two  years,  and  taken  refunding-  bonds  as  required  by  the  act. 
Whereupon,  the  creditor  is  barred  of  his  recovery  against  the 
executor  or  administrator,  and  must  proceed  b}^  scire  facias 
on  the  bond. 

By  a  careful  analysis  of  [he  elaborate  opinion  delivered  in 
Goodman  v.  Smithy  it  will  be  seen  that  the  conclusion  is  put 
on  two  grounds,  neither  of  which,  as  it  seems  to  us,  is  tenable. 
The  creditors  are  classed  into  the  diligent  and  tlie  dilatory, 
and  it  is  assumed  that  the  refunding  bonds  are  not  required 
for  the  benefit  of  the  latter,  consequently,  in  regard  to  them, 
whether  a  refunding  bond  had  been  taken  or  not,  is  immate- 
rial, and  so  no  averuient,  in  regard  to  it,  was  necessary. 

For  whose  benefit  are  refunding  bonds  to  be  taken  ?  Not 
for  the  benefit  of  the  diligent  creditors,  one  who  sues  within 
tile  time  alloAved  by  the  statute,  for  he  does  not  require  it. 
He  recovers  against  the  executor  or  administrator,  and  can- 
not be  barred  and  turned  over  to  seek  relief  on  the  refunding 
bond.  As  to  him,  the  fact  that  the  assets  have  been  paid 
over  and  refunding  bonds  taken,  cloes  not  establish  the  plea 
of  "  fully  administered."  The  same  remarks  apply  to  the 
limited  description  of  creditors,  mentioned  in  the  proviso  to 
the  4th  section.  They  belong  to  the  class  of  diligent  cred- 
itors, and  as  they  sue  within  the  time  allowed  by  law,  are  enti- 
tled to  recover  against  the  executor  or  administrator.  So  the 
refunding  bonds  were  not  intended  for  their  benefit.  But  the 
matter  is  not  left  to  conjecture  or  construction,  for  the  words 
of  the  statute  and  of  the  bonds  required  to  be  taken  by  the 
2nd  sec.  are  express,  "  giving  bond  with  two  or  more  able  sur- 
eties, conditioned,  that  if  any  debt,  truly  owed  by  the  deceas- 
ed, shall  be  afteriixmls  sited  for  and  recovered  or  otherwise 
duly  made  to  appear."     The  other  ground  is,  that  the  protec- 


330  IN  THE  SUPKEME  COUET. 


Cooper  V.  Cherry. 


tion  given  to  administrators  and  executors  by  the  4th  section, 
would  be  nugatory,  because  "  an  administrator  or  executor, 
who  has  faithfully  administered  the  assets,  and  who,  by  force 
of  such  administration,  is  adequately  protected,  stands  in  no 
need  of  this  additional  shield."  The  position  here  assumed 
is,  that  an  executor  or  administrator,  in  respect  to  creditors, 
who  bring  suit  within  the  two  years,  does  "faithfully  admin- 
ister," and  can  protect  himself  b}'"  showing  the  fact  that  pend- 
ing the  suit,  at  the  expiration  of  two  years  he  paid  over  the 
assets  to  the  legatees  or  distributees.  Is  this  position  tenable? 
Can  the  executor  or  administrator  protect  himself  against  a 
recovery,  by  bringing  forward  this  matter  under  a  plea  ^j>im 
darien  contimiance  ?  Assuredly  he  cannot,  and  the  question 
seems  to  have  been  misapprehended.  For  the  protection 
given  by  the  4th  section  was  in  respect  to  creditors,  who  fail 
to  sue  within  two  years,  and  so  far  from  being  nugatory,  it 
required  this  express  provision  to  enable  executors  and  ad- 
ministrators to  protect  themselves  against  creditors  who  had 
'not  sued  within  the  two  years,  and  their  liability  to  creditors, 
who  had  sued  within  the  time  allowed,  was  not  interfered 
witli  or  altered  in  any  respect,  but  was  left  as  at  common  law. 
The  research,  which  this  conflict  of  cases  lias  given  rise  to, 
brino:s  to  the  notice  of  the  Court  two  authorities,  which  seem 
not  to  have  occurred  to  the  Court  in  the  case  of  Goodman  v. 
Smithy  but  which  settle  tlie  construction  of  the  act  of  1715, 
and  furnish  a  direct  analogy  and  authority  for  the  construc- 
tion of  the  act  of  1789.  The  cases  are  Godley  v.  Taylor^ 
3  D<3v.  Rep.  178,  and  Bailey  v.  Shannonhouse^  1  Dev,  Eq. 
416  ;  and  it  is  settled  that,  notwithstanding  the  broad  terms 
of  the  act  of  1715,  an  executor  or  administrator  cannot  pro- 
tect himself  from  a  recovery  by  a  creditor,  who  had  failed  to 
sue  until  after  the  expiration  of  seven  years,  unless  he  avers 
and  proves  that  he  had  paid  over  the  surplus  assets  to  the 
treasury  as  required  to  do  by  the  act  of  1784,  or  to  the  trus- 
tees of  the  University  by  the  act  of  1809,  and  the  Court  adopt 
the  principle  that  in  the  construction  of  the  act  of  1715,  the 
0th  section  of  that  act,  and  the  act  of  1784  and  1809)  are  to 


JUNE  TEEM,  1861.  331 

Brown  v.  Smith. 

be  taken  into  consideration,  and  that  one  who  fails  to  do  an 
act,  which  the  law  requires  of  him  for  the  benefit  of  another, 
cannot  bar  the  recovery  of  the  latter,  because  he  has  not  pro- 
vided hiin  with  the  remedy  over,  which  the  law  contem- 
plated, and  made  it  his  duty  to  do  as  an  implied  condition, 
precedent  to  the  protection  which  he  claims. 

We  now  consider  the  question  settled,  both  on  principle 
and  authority,  and  concur  with  his  Honor  in  the  opinion  that 
the  plaintijff's  right  to  recover  against  the  defendant,  Mrs. 
Eason  was  not  barred,  as  she  still  retains  the  assets. 

There  is  no  error. 

Per  Curiam,  Judgment  affirmed. 


Doe  on  the  ikmise  of  WILSON  BROWN  v.  CALVIN  E.  SMITH. 

Where  land  has  been  sold  as  the  property  of  A,  under  execution,  and  he  has 
received  a  portion  of  the  sum  raised,  which  was  over  and  above  the  call  of 
the  execution,  he  cannot  be  a  witness  for  the  purchaser  in  an  action  for 
the  recovery  of  the  land. 

Where  both  parties  in  an  action  of  ejectment  claim  title  under  the  same  per- 
son, the  defendant  cannot  defeat  the  action  by  showing  title  in  a  third  per- 
son, unless  he  has  acquired  such  outstanding  title,  or  connects  himself  with 
it. 

This  was  an  action  of  ejectment,  tried  before  Howard,  J., 
at  the  last  Term  of  Orange  Superior  Court. 

The  lessor  claimed  title  under  a  deed  from  the  sheriff,  exe- 
cuted on  2Sth  of  October,  1858,  by  virtue  of  a  sale  under  ex- 
ecution and  judgment  against  one  Turner,  for  a  debt  con- 
tracted by  him  in  January,  1854.  He  then  showed  a  deed 
for  the  same  land,  executed  by  Turner  to  the  defendant, 
Smith,  dated  September,  1854,  and  then  showed,  by  Turner, 
that  the  money,  recited  in  such  deed,  as  having  been  receiv- 
ed by  him,  had,  in  fact,  not  been  paid ;  that  no  money  or 


332  m  THE  SUPREME  COURT. 


Brown  v.  Smith. 


other  thing  of  value  had  been  given  to  liim,  by  Smith,  for  the 
land  in  question  ;  that  the  deed  liad  really  been  executed  in 
August,  1855,  during  the  session  of  Orange  County  Court, 
and  was  antedated  in  order  to  defeat  a  judgment  (in  a  bas- 
tardy case)  that  was  rendered  in  that  Court  on  the  day  before. 
The  defendant  excepted  to  the  competency  of  Turner,  but  the 
exception  was  over-ruled. 

To  prove  title  out  of  Turner  at  the  date  of  the  judgment  and 
execution,  under  which  the  plaintiff  claimed,  the  defendant 
showed  that  at  a  sale,  under  the  judgment  in  the  bastardy  case, 
the  land,  in  question,  had  been  bought  by  one  Miller,  and  a  deed 
executed  to  him  on  the  26th  of  July,  1S5G  ;  that  at  such  sale 
the  land  brought  more  money  than  was  necessary  to  satisfy 
the  execution,  and  the  overplus  was  paid  by  Miller  to  Turner, 
who  gave  a  receipt  for  the  money.  , 

In  reply  to  this,  the  plaintiff  proved  that  Miller,  at  the  sale 
above  mentioned,  had  acted  as  the  sheriff's  deputy,  and  had 
employed  one  McCauley  to  buy  the  land  for  him  ;  that  Mc- 
Cauley  bid  off  the  land  accordingly,  and  assigned  the  bid  to 
Miller. 

His  Honor  charged  the  jury,  that  the  sale  and  purchase  by 
Miller  was,  for  the  purpose  of  this  action,  a  nullity,  and  that 
the  admitted  good  character  of  Smith  was  not  to  be  consider- 
ed by  them.     Defendant  excepted. 

Yerdict  and  judgment  for  plaintiff".     Appeal  by  defendant. 

PhilUiJS,  for  the  plaintiff. 
Norivood,  for  the  defendant. 

Pearson,  C.  J.  The  exception  to  the  competency  of  Tur- 
ner as  a  witness  on  the  side  of  the  plaintiff",  is  well  taken. 
The  witness  had  a  direct  interest  to  support  the  title  of  Brown, 
because  of  his  liability  to  him,  in  the  event  of  his  losing  the 
land  by  the  provision  of  the  statute,  Revised  Code,  chap.  45, 
section  27.  It  does  not  appear  from  the  case,  as  made  out, 
that  the  deed  of  Turner  to  Smith,  contained  a  warranty,  and 
in  the  transfer  of  land,  a  warranty  is  not  implied  ;  consequent- 


JUNE  TERM,  1861.  333 

Collins  V.  Creecy. 

I}',  there  was  no  corresponding  liability  of  the  witness  to 
Smith,  so  as  to  bring  the  question  within  the  rule  of  a  witness 
having  an  interest  on  hoth  sides.  For  this  error,  there  will  be 
a  venire  de  novo,  and  we  arc  not  at  liberty  to  enter  upon  the 
question,  discussed  at  the  bar,  and  on  which  the  case  seems 
to  have  turned,  on  the  trial,  in  the  Court  below. 

We  will  suggest,  however,  that  there  seems  to  be  nothing  to 
prevent  tiie  application  of  the  principle,  that  when  both  par- 
ties claim  title  under  the  same  person,  the  defendant  cannot 
defend  an  action  by  showing  title  in  a  third  person,  unless  he 
has  acquired  such  outstanding  title,  or  connects  himself  with 
it.  This  suggestion  seems  called  for  to  prevent  a  repetition 
of  what  has  occurred  at  this  term — a  point  is  fully  argued, 
and  upon  examination,  the  Court  finds  that  is  excluded  by  a 
preliminary  matter. 

Per  Cukiam,  Juderaent  reversed. 


E.  A.  COLLINS  V.  AUGUSTUS  CREECY. 

The  statute,  Rev.  Code,  chap.  101,  sec.  14,  gives  the  overseer  of  a  road  (act- 
ing in  good  faith)  power  to  cut  poles,  &c.,  on  any  land  adjoining  his  sec- 
tion, and  he  is  not  confined  to  the  land  immediately  adjoining  the  spot 
where  the  work  is  to  be  done. 

This  was  an  action  of  trespass  quake  clausum  fregit,  tried 
before  IIeatii,  J.,  at  the  last  Spring  Term  of  Chowan  Superi- 
or Court. 

The  plaintiff'  declared  for  an  entry,  by  the  defendant,  on 
her  enclosed  lands  and  cutting  and  carrying  away  some  oak 
trees  therefrom.  She  proved  that  she  was  in  the  possession  of 
an  enclosed  field,  in  one  end  of  which  tiiere  was  an  oak  grove, 
whicli  field  and  grove  abutted  on  the  public  road ;  that  no 
one  was  permitted  to  cut  trees  there  save  her  own  hands,  and 

2    . 


334  m  THE  SUPREME  COURT. 

Collins  V.  Creecy. 

they  none  but  dead  trees,  that  the  defendant  entered  thereon 
and  cut  down  five  oak  trees  of  small  size  ;  that  witness  told 
the  defendant  lie  better  not  cut  any  more  of  these  trees,  else 
he  might  get  into  trouble  about  them  ;  that  he  then  cut  no 
more. 

The  defendant  then  proved  that  he  was  the  duly  appointed 
overseer  of  the  road  on  which  the  enclosure  and  grove  abut- 
ted, and  to  some  considerable  distance  beyond  the  premises 
described ;  that  as  such  overseer,  he  was  making  and  repair- 
ing some  bridges  on  the  road  where  they  were  necessary ; 
that  these  bridges  were  at  a  considerable  distance  beyond  the 
plaintiff's  land  and  opposite  to  that  of  other  persons,  and  that 
the  said  timber  Avas  used  for  the  purpose  of  repairing  a  bridge 
on  the  road. 

The  plaintiff  then  proved  that  there  was  other  timber  on  un- 
inclosed  ground  opposite  to  this  grove,  but  it  M-as  described 
as  being  large  pine,  and  not  so  good  as  oak  for  the  purpose 
intended,  and  that  further  off — opposite  to  points  M-here 
the  bridges  were,  on  the  lands  of  other  persons,  there  was  tim- 
ber fitting  for  such  purposes,  but  it  was  in  a  swamp  and  diffi- 
cult to  be  got ;  that  between  this  last  described  place  and  the 
site  of  the  bridges,  one  McCoy  had  a  small  oak  grove.  It 
was  further  in  proof,  that  these  bridges  had  been  formerly 
constructed  of  pine  timber. 

The  Judge  charged  the  jury  :  First,  if  the  overseer  enter- 
ed— cut  down  and  carried  away  the  timber  for  the  purpose  of 
making  and  repairing  the  bridges  in  the  road  under  his 
charge,  and  he  acted  in  good  faith,  the  defendant  was  entitled 
to  their  verdict.  But,  secondly,  if  they  believed  the  occasion 
was  used  as  a  pretext,  and  he  entered,  cut  and  carried  away 
the  timber  maliciously,  with  an  intent  to  injure,  harrass  and 
vex  the  plaintiff,  the  plaintiff  was  entitled  to  their  verdict  for 
the  actual  damage  done  her ;  to  which,  punitory  damages 
might  be  added.     Plaintiff  excepted. 

Yerdict  for  the  defendant.     Judgment  and  appeal. 

Winston,  Jr.^  for  the  plaintiff. 

Barnes^  for  the  defendant. 


JUNE  TERM,  1861.  335 

Collins  V.  Creecy. 

Pearson,  C.  J.  The  statute  requires  overseers  of  roads  to 
make  and  repair  bridges  and  causeways,  and  to  enable  them 
to  do  so,  they  are  authorised  to  cut  poles  and  other  necessary 
timber,  and  provision  is  made  for  compensation  to  tlie  owner 
of  the  land  b}?^  an  application  to  the  count37^  court;  Revised 
Code,  chap.  101,  sec.  14,  15,  16. 

This  is  an  instance  of  the  exercise,  on  the  part  of  the  sov- 
ereign, of  the  right  to  take  private  property  for  the  use  of  the 
public,  making  compensation. 

No  question  is  made  in  regard  to  the  right,  but  as  the  pro- 
perty is  taken  \vithout  tlie  consent  of  the  owner,  it  is  proper 
tliat  the  statute  should  be  construed  strictly,  so  as  not  to  car- 
ry its  operation  farther  tlian  is  sufficient  to  meet  the  jiublic 
necessit}''  wliich  called  for  the  enactment,  (living  the  plain- 
ti^'  the  benefit  of  this  principle,  we  are  of  opinion  that  the 
statute  gives  the  overseer  power  to  cut  poles,  &c.,  on  any  land 
adjoining  his  section  of  the  road,  and  that  he  is  not  confined 
to  the  land  immediatel}'^  adjoining  the  spot  where  the  work  is 
to  be  done.  Tlie  words  of  the  statute  are  general,  and  do  not 
point  out  the  place  where  poles  may  be  cut.  So,  while,  on 
the  one  hand,  we  do  not  adopt  the  construction  that  the  ov<er- 
seer  may  cut  poles  on  any  land  where  he  pleases  within  the 
county,  because  so  large  a  power  is  not  necessary  for  the  pur- 
pose of  the  statute,  on  the  other,  we  do  not  restrict  its  ope- 
ration to  the  very  spot  where  the  causeway  or  bridge  is  to  be 
made ;  because  that  might  defeat  the  purpose  of  the  statute. 
For  instance :  Suppose  the  place  where  a  causeway  is  need- 
ed, to  be  in  a  lane,  no  woods  within  lialf  a  mile. 

As  the  land  of  the  plaintitf  adjoined  the  defendant's  section 
of  the  road,  he  had  the  power,  according  to  the  true  construc- 
tion of  the  statute,  to  cut  poles,  and  the  question  turned  on 
the  manner  in  which  he  exercised  it.  Did  he  abuse  the  pow- 
er ?  or  did  he  act  bona  Jide  ?  witli  a  single  e^^e  to  the  dis- 
charge of  iiis  duty  ?  We  entirely  approve  of  the  manner  in 
which  this  question  was  left  to  the  jury.     There  is  no  error. 

Pek  CuiiiAM,  Judgment  affirmed* 


m  IN  THE  SUPKEME  COUKT. 


Jones  V.  Edwards. 


W.  Z.  Y.  JONES  et  al  v.  ISAAC  C.  EDWARDS  d  al 

Where  real  estate,  belonging  to  an  infant,  has  been  converted  into  personalty 
by  a  sale,  under  the  decree  of  Court  for  a  division,  the  fund  will  continue 
to  have  the  character  of  realty,  and  be  transmissible  according  to  the  law 
of  descents,  until  a  different  character  is  impressed  upon  it  by  some  act  of 
the  owner. 

Tnis  was  a  petition  for  a  distributive  share  of  the  estate  of 
Clarinda  Joyner  against  her  personal  representative,  heard 
before  Osbokne,  J.,  at  the  last  Spring  Term  of  Greene  Supe- 
rior Court. 

Upon  the  facts  of  the  case,  as  set  forth  in  the  pleadings, 
(which  are  sufficiently  stated  in  the  opinion  of  this  Court,)  hi& 
Honor  below  dismissed  the  petition,  and  the  plaintiifs  ap- 
pealed. 

ISTo  counsel  appeared  for  the  plaintiffs  in  this  Court. 
J.  W.  Bryan,  for  the  defendants. 

Manly,  J.  "We  gather  the  following  facts  from  the  plead- 
ings :  Charles  Jo3mer,  by  his  last  will,  left  a  parcel  of  land  to 
be  equally  divided  between  his  family  of  children,  viz : 
Caroline,  wife  of  the  defendant  Edwards,  Eliza  A.,  Jolin  F., 
Lavinia  and  Clarinda  Joyner.  By  the  subsequent  death  of 
two  of  the  children,  under  age  and  intestate,  that  is,  Eliza  and 
Lavania,  the  remaining  three  became  entitled  to  tlie  land  as 
tenants  in  common.  These  three  presented  a  petition  to  the 
court  of  equity  of  Greene,  to  have  the  land  sold  for  a  divi- 
sion, which  was  accordingly  decreed,  and  the  proceeds  divi- 
ded between  them,  each  receiving  $1361.18.  The  case  now 
before  us,  sets  forth  that  another  of  the  children,  viz.,  Clarin- 
da, is  now  dead,  under  age  and  intestate,  and  that  the  peti- 
tioner, Jones,  in  right  of  his  wife,  Mary,  who  is  the  mother 
of  the  children,  is  entitled  to  a  distributive  share  of  this  fund. 
This,  we  think,  is  a  mistake  of  right. 

By  reference  to  the  law,  under  which  the  proceedings  for 


•^     JUNE  TERM,  1861.  337 

Griffin  v.  Foster. 

. , i 

the  sale  were  conducted ;  Revised  Code,  chap.  82,  sections 
6  and  7,  it  will  be  found,  where  real  estate  is  converted  into 
personalty  for  a  division,  the  latter,  if  belonging  to  an  infant, 
will  continue  of  the  character  of  realty,  so  as  to  be  subject  to 
the  law  of  descent  governing  the  transmission  of  real  estate  ; 
and  such  will  be  the  case,  we  take  it,  until  a  different  charac- 
ter is  impressed  upon  it  by  some  act  of  the  owner ;  according 
to  what  is  said  in  Dudley  v.  Winfield,  Busb.  Eq.  91. 

In  the  case  before  us,  the  real  estate  had  been  converted 
by  a  sale  in  equity  into  personalty,  and  paid  to  the  guardian 
ofClarinda;  upon  her  death,  therefore,  intestate,  and  under 
age,  it  would  descend  to  her  real  representative  and  not  to 
her  next  of  kind,  under  the  statute  for  distributing  personalty. 

The  petitioner,  Marj'-,  therefore,  who  is  the  mother  of  the 
decedent,  is  not  entitled  to  any  portion  of  this  fund,  but  it 
goes  to  the  heirs-at-law  according  to  the  canons  of  descent 
regulating  inheritances,  to  wit :  to  the  brother  and  sister. 

The  judgment  of  the  Court  below  should  be  affirmed,  and 
the  petition  dismissed  with  costs- 

Pee  Cukiam,  Judgment  affirmed. 


JOSEPH  GRIFFIN  v.  PETER  G.  FOSTER. 

The  eontinuance  of  an  overflow  of  land  by  the  ponding  back  of  water  for 
twelve  years,  does  not  justify  the  presumption  of  the  grant  of  an  easement 

It  is  not  competent,  either  as  a  bar  to  the  action  or  in  mitigation  of  damages, 
for  die  defendant  to  show  that  for  twelve  years,  neither  the  plaintiff  nor 
the  party  from  whom  he  purchased,  had  complained  of  the  overflow  of  his 
land. 

(The  case  of  TngraJiam  v.  Jlough,  1  Jones'  Rep.  39,  cited  and  approved.) 

This  was  a  petition  to  recover  damages  for  ponding  back 
water  upon  the  plaintiff's  land,  tried  before  Heath,  J.,  at  the 
Fall  Term,  1860,  oi  Martin  Superior  Court 


3S8  IN  THE  SUFEEME  COURT. 

Griffin  v.  Foster. 

The  case  was  brought  np  bj  appeal  from  the  finding  of  a 
]\xvy  of  view.  On  the  trial  below,  it  appeared  that  the 
dam  in  question  had  been  erected  twelve  years  theretofore, 
and  the  water  kept  up  to  its  then  height  by  one  Williams, 
who  about  two  years  before,  had  sold  to  the  defendant.  When 
the  dam  was  erected,  the  plaintiff's  land  was  owned  by  one 
Harman  Griffin,  who  some  six  yeare  before  sold  it  to  the  plain- 
tiff. The  defendant  offered  to  show  that  before  the  present 
petition  was  filed,  no  complaint  was  made  of  the  overflowing 
by  either  the  plaintiff"  or  Harman  Griffin,  and  no  suit  brought. 
This  evidence  was  offered  in  bar,  and  in  mitigation  of  dam- 
ages. 

The  Court  held  that  it  was  not  competent  in  either  point  of 
view.     Defendant's  counsel  excepted. 

Yerdict  and''judgment  for  the  plaintiff",  and  appeal  by  the 
defendant. 

Warren,  for  the  plaintiff. 
Winston,  Jr.,  for  the  defendant. 

Maotlt,  J.  Two  questions  are  presented  in  the  case  trans- 
mitted to  this  Court. 

1.  Whether  the  continuance  of  the  pond  of  water  on  the 
petitioner's  land  for  twelve  years,  would  justify  the  presump- 
tion of  a  grant  of  the  easement. 

2.  Whether  it  was  competent  to  prove  in  bar,  or  in  mitiga- 
tion of  damages,  that  no  complaint  had  been  made  prior  to 
the  filing  of  t]ie  petition. 

Both  questions  were  properly  ruled  against  the  defendant 
below. 

The  provisions  of  tlie  Revised  Code,  ch.  65,  sections  18  and 
19,  raising  a  presumption  of  payment  or  abandonment  upon 
judgments,  decrees,  contracts,  equities  of  redemption,  and 
other  equitable  interests  after  the  lapse  of  ten  years,  do  not 
embrace  cases  of  the  kind  before  us ;  so,  that  the  presump- 
tive bar  in  favor  of  a  private  easement  stands  as  at  common 
law.    In  England,  twenty  years  seems  to  have  been  adopt- 


JUNE  TERM,  1861.  339 

Griffin  v.  Foster. 

ed  by  the  Judges  bj  analogy  to  the  statute,  21  James  I,  which 
makes  an  adverse  enjoyment  for  that  time  a  bar  to  an  action 
of  ejectment.  A  less  time  than  this  does  not  seem  to  have 
been  held,  in  any  instance,  of  itself,  sufficient  to  justity  the 
presumption. 

In  North  Carolina,  we  have  followed  the  English  rule,  and 
liave  held  twenty  3'ears  necessar}'"  and  sufficient.  The  cases 
upon  this  point  arc  collected  in  the  opinion  of  the  Court  de- 
livered in  Lu/raham  v.  Hough,  1  Jones'  Rep.^^O.  Since  that 
case,  it  may  be  regarded  as  settled,  that  twenty  years  enjoy- 
ment of  an  easement,  uninterrupted  and  unexplained,  will 
raise  the  presumption  of  a  grant.  Nothing  less  than  this  will 
do.  The  eleven  or  twelve  years,  therefore,  set  forth  in  the 
case,  as  the  period  during  which  the  pond  of  water  has  been 
kept  up,  is  not  sufficient  to  create  a  presumptive  bar  to  the 
right  of  redress  of  the  owner  of  the  land  covered. 

The  evidence  offered  and  rejected  by  the  Court,  was  inad- 
missible for  eitlier  of  the  objects  avowed,  or  for  any  other  that 
we  are  aware  of.  No  demand  of  damages,  or  notice  of  the 
petition,  prior  to  the  filing  of  the  same,  was  necessary.  Pre- 
vious complaint,  therefore,  not  being  a  prerequisite,  the  want 
of  it  was  not  a  bar  to  the  suit.  So,  we  cannot  perceive  how 
or  in  what  way  it  can  have  a  legitimate  effect  upon  the 
amount  of  damages.  Suffering  can  rarely  be  measured,  with 
truth,  by  the  amount  of  complaint  indulged ;  and  the  ab- 
sence of  the  one  cannot  be  inferred,  with  any  reasonable  cer- 
tainty, from  the  absence  of  the  other.  Such  matters  depend 
so  much  on  temperament  and  education,  that  they  cannot  be 
relied  upon  as  indices  from  which  a  jury  may  infer  facts  up- 
on which  to  base  a  verdict.     There  is  no  error. 

Pee  Cukiajm.     "  Judgment  affirmed. 


340  m  THE  SUPKEME  COURT. 


Poole  V.  Rail  Road  Co. 


WILLIAM  T.  POOLE  v.  THE  NORTH  CAROLINA  RAIL  ROAD. 
COMPANY. 

Where  a  deaf  mute  slave,  who  was  walking  on  a  railroad  track  fnmi  the  di- 
rection of  an  approaching  train,  was  killed  by  the  train,  it  not  ajipearing 
that  the  engineer  knew  of  the  slave's  infirmity,  and  it  appearing  that  the 
usual  warning  was  given  by  the  stcan»  whistle  for  one  endowed  with 
hearing  to  have  made  bis  escape,  it  was  held  that  the  company  was  not 
liable  for  the  loss. 

This  was  an  action  ois^  the  case  to  recover  damages  for  ne- 
gligence in  running  defendant's  train,  tried  before  Bailey,  J., 
at  the  last  Spring  Term  of  Wake  Superior  Court. 

The  plaintiff  declared  against  the  defendant  for  so  negli- 
gently running  a  train  on  their  railroad  track,  as  to  strike  and 
kill  a  negro  man  slave  belonging  to  him. 

It  appeared  in  the  case,  that  the  slave,  Guilford,  who  was 
the  subject  of  this  suit,  was  a  deaf  mute,  and  was  walking  on 
the  railroad  track  with  his  back  to  a  gravel  train,  which  was 
approaching  him.  The  engineer  in  charge  of  the  train  had 
been  going  at  the  rate  of  fifteen  or  twenty  miles  an  hour, 
when  he  saw  a  smoke  ahead  of  him  in  a  cut,  and  believing  it 
to  be  from  an  approaching  train,  he  slackened  speed  to  about 
four  miles  an  hour ;  but  perceiving  that  the  smoke  was  from 
a  coal-kiln,  he  put  on  steam,  and  as  he  was  clearing  the  smoke, 
for  the  first  time  he  saw  the  negro  man  in  question,  on  the 
track,  about  seventy-five  or  one  hundred  yards  distant.  When 
the  engineer  first  saw  the  slave,  the  engine  was  gaining  speed, 
and  was  going  at  the  rate  of  about  from  eight  to  twelve  miles 
per  hour.  He  could  have  stopped  the  train  when  he  first  saw 
the  slave,  but  made  no  effort  to  dolSo,  because  he  took  it  for 
granted  that  he  would  hear  the  noise  of  his  approach,  and 
get  out  of  the  way ;  but  on  coming  to  within  thirty  yards  ol 
him,  and  finding  he  did  not  quit  the  track,  he  gave  the  signal 
to  put  on  the  hrakes,  and  when  within  fifteen  or  twenty  steps, 
gave  the  alarm  whistle,  and  continued  to  hlow  lottd  and  quick, 
until  the  negro  was  struck.    It  appeared  that  if  the  slave 


t      JUKE  TERM,  1861.  341 

Poole  V.  Rail  Road  Co. 

__^ . • 

could  have  heard,  he  had  time  to  have  escaped  after  the 
whistle  first  sounded  the  alarm.  The  engineer  had  no  know- 
ledge of  the  slave's  deafness. 

Guilford  was  a  blacksmith,  and  was  worth  $1000. 

The  Court  instructed  the  jury  that  the  plaintifi"  could  not 
recover.  Verdict  and  judgment  for  the  defendant,  and  ap- 
peal by  the  plaintiff. 

Miller  and  G.  ^V.  Tlmjwood^  for  the  plaintiff, 
B.  F.  Moore.,  for  the  defendant. 

Battle,  J.  "We  approve  the  instruction  given  to  the  jury 
by  his  Honor,  that  the  plaintiff  was  not  entitled  to  recover. 

The  engineer,  who  had  the  management  of  the  defendant's 
cars,  did  not  know  that  the  plaintiff's  slave  was  a  deaf  mute. 
In  the  absence  of  such  knowledge,  he  had  the  right  to  pre- 
sume that  the  slave  had  the  ordinary  faculties  of  hearing  and 
sight,  and  that  he  was  endowed  with  such  an  instinct  of  self- 
preservation,  as  would  prompt  him  to  leave  the  railroad  track, 
and  thus  escape  the  danger  of  being  knocked  down  and  run 
over  by  the  approaching  cars ;  see  Herring  v.  Wilmington 
and  Bcdeigh  Railroad  Comimny^  10  Ired.  102;  Couch  v. 
JoneSf  4  Jones  402.  Had  the  engineer  omitted  to  give  the 
ordinary  signals  for  warning  persons  to  leave  the  track  of  the 
road,  it  would  have  been  deemed  negligence,  for  which  the 
the  defendant  miglit  have  been  held  responsible.  But  it  ap- 
pears from  the  testimony,  that  he  did  every  thing  to  avoid 
the  catastrophe  which  prudence  or  humanity  could  dictate, 
and  his  efiorts  proved  vain  only  because  the  infirmity  of  the 
slave  prevented  his  profiting  by  them.  See  Aycock  v.  Wil- 
mington and  Weldon  llMlroad  Company.,  6  Jones,  231. 

Per  Curiam,  Judgment  affirmed. 


342  IN  THE  SUPKEME  COURT. 


Moffitt  V.  Burgess. 


HUGH  T.  MOFFITT  v.  JOHX  C.  BURGESS. 

Where  a  part}',  with  his  horse  and  bugg}',  carried  a  debtor  to  a  raiU-oad  sta- 
tion, and  there  procured  the  money  to  enable  him  to  leave  the  State,  with 
the  intent  to  assist  him  in  the  purpose  of  avoiding  his  creditors,  it  was  JieW 
to  be  a  fraudulent  removal  within  the  statute. 

The  declaration  of  a  debtor  fradulently  removed,  that  "  he  intended  to  get 
the  defendant  into  a  scrape,"  was  held  to  be  immaterial. 

This  was  an  action  on  the  case,  for  fraudulent!}^  removing 
a  debtor,  one  Aired,  tried  before  Howard,  J.,  at  the  last  Su- 
perior Court  of  Randolph  county. 

2Irs.  Iiersey,  a  cousin  of  the  defendant,  and  of  Aired,  tes- 
tified that  the  defendant,  and  Aired,  his  brother-in-law, 
came  one  Sunda}''  evening  to  the  residence  of  her  liusband, 
in  Greensborough,  in  the  buggy  and  with  the  horse  of  the 
defendant;  that  the  defendant  asked  for  her  husband,  and 
said  that  he  had  bought  Alred's  growing  crop,  and  wished  to 
get  the  money  to  pay  him  for  it ;  that  Aired  was  broke — was 
out  collecting  money,  and  was  going  to  Missouri ;  that  the 
night  before,  Aired  came  to  his  house  and  told  him  that  his 
crop  was  under  execution,  and  wanted  him  to  buy  it ;  that  he 
was  going  away;  that  Aired  could  not  go,  unless  the  defend- 
ant could  get  the  money  from  witness'  husband  ;  that  witness 
asked  defendant,  "  what  was  to  become  of  Sally,"  Alred's  wife, 
to  which  he  replied,  that  she  did  not  know  her  husband  was  go- 
ing away  until  the  night  before  ;  that  she  was  not  going  until 
further  orders,  and  that  in  the  mean  time,  he  (defendant)  was 
to  take  care  of  her  ;  that  he  didn't  reckon  that  witness  would 
ever  see  Aired  again  ;  that  on  Monday,  her  husband  let  de- 
fendant have  the  money,  $150,  which  he  paid  over  to  Aired, 
who  took  the  next  train  for  the  west. 

One  witness  testified,  that  when  defendant  returned,  he 
stated  that  Aired  had  gone  to  High  Point  or  Greensborough 
to  get  work.  Another,  that  he  said  on  his  return,  that  Aired 
was  in  a  quandary,  when  he  left  him,  whether  to  go  to  Beaufort 
or  Missouri. 


JUNE  TEEM,  1861.  3i3 


Moffitt  V.  Burgess. 


Kersey  stated  that  he  lent  the  defendant  the  sum  of  $150, 
whicli  was  paid  to  Ah-ed ;  that  defendant  then  endeavored  to 
pnrsnade  Ah-ed  to  give  up  his  purpose  of  going  and  offered 
to  furnish  him  a  house,  free  of  rent,  if  he  would  give  up  the 
idea  of  going. 

In  the  course  of  tlie  trial,  the  defendant's  counsel  asked  a 
witness  if  he  did  not  hear  Aired  saj,  sometime  before  he  went 
away,  that  he  intended  to  get  the  defendant  into  a  scrape. 
Plaintiff's  counsel  objected  to  this  question,  and  the  testimo- 
ny was  ruled  out,  whereupon  the  defendant  excepted. 

The  Court  charged  the  jury  that,  although  a  debtor  may  be 
embarrassed,  and  may  be  preparing  to  leave  the  country,  to 
avoid  his  creditors,  yet,  if  a  person  simply  purchase  his  pro- 
perty for  value,  or  to  save  his  debt,  and  with  no  other  pur- 
pose or  intent,  he  would  not  be  made  liable  for  the  debts  of 
such  debtor  ;  but  if  he  knows  that  the  del)tor  is  insolvent  or 
embarrassed,  and  is  preparing  to  avoid  his  creditors,  and  he 
furnish  him  means  of  transporting  either  himself  or  his  pro- 
perty, then  the  law  presumes  he  intended  the  consequences 
of  his  act,  and  unless  he  shows  that  such  was  not  his  intent, 
lie  will  be  held  responsible.  Tlierefore,  if  the  jury  were  sat- 
isfied that  the  defendant  knew  of  Alred's  embarrassment  be- 
fore he  left  home,  and  that  Mrs.  Kersey's  statement  was  true, 
plaintiff  was  entitled  to  recover.  But  if  tlie  defendant  sim- 
ply purchased  the  crop  and  went  to  Greensborough  for  the 
mone}',  and  with  no  other  intent,  then  they  should  find  for 
the  defendant.     Defendant's  counsel  excepted  to  the  charge. 

Verdict  and  judgment  for  plaintiff.     Appeal  by  defendant. 

Long^  Scott  and  Phillips^  for  the  plaintiff. 
Go'i^ell^  for  the  defendant. 

Battlk,  J.  Taking  the  whole  of  His  Honor's  charge  to- 
gether, and  applying  it  to  the  facts  stated  by  the  witnesses, 
Mr.  and  Mrs.  Kersey,  it  is  correct  in  principle,  and  is  fully 
sustained  by  the  case  of  Moss^  Bell  c&  Co.  v.  Peoples^  G  Jones 
140.     If  the  defendant,  with  his  horse  and  buggy,  carried  the 


)U  m  THE  SUPREME  COURT. 


Shaw  V.  Burfoot. 


debtoi"  to  Greensborough,  and  there  procured  the  money 
to  enable  him  to  leave  the  State,  and  if  this  were  done 
with  the  intent  to  assist  him  in  the  purpose  of  avoiding  his 
creditors,  it  was  a  frandnlent  removal  of  the  debtor  within 
the  meaning  of  the  statute,  and  the  defendant  must  abide  the 
consequences. 

The  testimou}'  M-hich  was  offered  on  the  part  of  the  defend- 
ant as  to  the  declaration  of  the  debtor,  that  "he  intended  to 
get  him  into  a  scrape,"  was  properly  rejected  on  the  ground 
of  its  immateriality.  Tlie  debtor  did  get  him  into  a  scrape, 
and  it  M-asa  matter  of  no  consequence  on  the  trial  of  the  issue 
whether  he  did  it  designedly  or  not. 

Per  Cukiam,  Judgment  affirmed. 


H.  M.  SHAW  AND  B.  M.  BAXTER  v  JOHN  F.  BUEFOOT. 

Two,  or  more,  separate  proprietors  of  land  cannot  sustain  a  joint  petition  for 
a  ditch  to  drain  their  lands,  without  alleging  that  a  common  ditch  would 
drain  the  lands  of  all  the  petitioners. 

This  was  a  petition  for  commissioners  to  lay  off  of  a  ditch 
for  drainage,  heard  before  Heath,  J.,  at  the  last  Terra  of  Cur- 
rituck Superior  Court. 

The  case  came  up  from  the  County  Court,  by  appeal,  to  the 
Superior  Court. 

The  petitioners  set  forth  that  they  are  owners  of  certain 
lands  on  the  east  side  of  Indian  ridge,  which  are  subject  to 
being  overflowed,  and  that  their  value  is  thus  greatly  impair- 
ed ;  that  they  have  no  means  of  draining  them  except  tlirough 
the  lands  of  the  defendant,  and  of  others,  (naming  them,)  who 
are  made  defendants,  but  who  did  not  appeal  ;  that  said  ditch 
ought  to  be  upon  and  over  the  lands  of  these  defendants,  be- 
ginning with  that  of  plaintiff  Shaw. 

The  prayer  is  for  commissioners  to  view  the  premises  to  as- 


JUNE  TEEM,  1861.  345 

Shaw  V.  Burfoot. 

_ — _ — — _ — _ ^ 

certain  whether  such  ditch  or  drain  be  necessary — to  direct  of 
what  size,  and  at  what  points  it  shall  be  cut,  and  prescribe  the 
amount  of  work  that  each  person,  over  whose  lands  it  shall 
pass,  and  who  may  desire  to  drain  into  it,  shall  do  in  cutting 
and  keeping  the  same  in  good  order,  and  to  assess  the  dam- 
age each  party  maj'  sustain  by  such  ditch. 

The  defendant,  Burfoot,  alone  answered,  taking  exception 
to  the  form  of  the  petition,  especially  to  the  fact  that  the  plain- 
tijS's  had  joined  in  the  petition  M-ithout  setting  out  any  joint 
interest  in  the  contemplated  work. 

The  Court  gave  judgment,  confirming  the  order  of  the 
county  court,  and  appointed  commissioners  to  go  upon  the 
land,  and  enquire  and  report;  from  which  judgment  the  de- 
fendant, Burfoot,  appealed. 

ir.  A.  Jloore,  for  the  plaintiffs. 
Jlinton,  for  the  defendant. 

Manly,  J.  The  allegations  of  the  ])etition  are  not  such  as 
to  warrant  proceedings  in  the  names  of  the  petitioners  joint- 
l3\  To  make  a  petition  by  two  or  more  separate  proprietors 
of  land,  proper,  in  a  case  of  the  kind  before  us.  it  ought  to,be 
alleged  that  a  common  ditch  (the  one  which  they  seek)  would 
drain  the  land  of  all,  and  that  in  that  way  all  have  a  joint  in- 
terest in  the  object  of  their  suit.  iS[o  such  allegation  is  made, 
nor  is  that  state  of  facts  inferable,  at  all,  from  the  contents 
of  the  petition. 

There  arc  other  substantial  defects  in  the  frame-work  of  the 
petition,  w^hich  are  objected  to  in  the  answer,  and  which  the 
draftsman  wuU  at  once  perceive  by  comparing  the  petition 
with  the  method  of  proceedure  pointed  out  in  the  Code. 

The  judgment  of  the  Superior  Court,  appointing  commis- 
sioners was  erroneous,  and  should  be  reversed,  and  the  defen- 
dant's motion  to  dismiss  sustained. 

Per  Curiam.     Judgment  reversed  and  petition  dismissed. 


3M  IN  THE  SUPREME  COURT. 


State  V.  Peter,  Jess,  and  ^liles. 


STATE  V.  PETER,  JESS,  AND  .\riLES,   {slaves.) 

The  master  of  a  slave  committed  to  jail  on  the  warrant  of  a  justice  of  th> 
peace  for  an  oflcnce  cognizable  in  the  Superior  Court  is  liable  for  jail-fee? 
although  the  grand  jury,  upon  an  enquiry,  may  have  refused  to  make  ; 
presentment  against  such  slave. 

Motion  for  the  taxation  of  costs,  licard  before  Heath,  J.,  a. 
a  Special  Term  of  the  Superior  Court  of  Currituck. 

The  slaves,  Peter,  Jess  and  Miles,  the  property  of  George 
T.  AVallace,  were  comniited  to  the  jail  of  Currituck  county  b} 
justices  of  the  peace,  under  a  criminal  chari^e,  which  was  not 
bailable.  They  remained  in  jail  until  14th  of  January,  1861, 
when  a  court  of  Oyer  and  Terminer  was  held  for  the  said  coun- 
ty, and  then  the  case  of  tlicse  slaves  was  submitted  to  the 
irrand  jniy,  Mho,  after  a  careful  examination,  reported  "  that 
tliey  found  notliing  against  them,  and,  therefore,  declined  to 
make  any  i)resentment  against  them." 

Thereupon  the  said  slaves  were  discharged  at  the  expense 
of  their  owner,  excluding  the  jail  fees,  the  Court  declining  to 
render  judgment  for  these.  From  which  judgment,  the  soli- 
cit»r  for  tiie  State  appealed. 

Attorney/  General,  for  the  State. 
Ilinton,  for  the  defendants. 

Manly,  J.  The  Revised  Code,  chapter,  107,  sec.  OU,  sub- 
jects the  owner  of  a  slave  to  costs,  in  all  cases,  of  Superior 
Court  jurisdiction,  wliere  the  slave,  if  a  free  man,  would  be 
liable. 

Chapter  87,  sec.  6,  provides  that  every  person  committed 
to  a  public  jail,  by  lawful  authority,  for  any  criminal  otfense 
or  misdemeanor  against  the  State,  shall  bear  all  reasonable 
charges  for  carrying  and  guarding  him  to  jail,  and  also  for 
his  support  therein,  until  released. 

These  two  sections  of  the  Code  make  the  owner  of  the 
slaves,  in  tlie  case  before  us,  liable,  it  seems  to  us,  for  the  jail* 


JUNE  TERM,  1861.  347 


Kron  V.  Hinson. 


fees,  and  we  tliink  they  ought  to  be  included  in  the  taxed 
costs.  The  case  of  the  jState  v.  Isaac,  2  Dev.  47,  is  a  direct 
autliorit}^  for  this  view.  There  is  error,  therefore,  in  the  jiidi;- 
ment  below.  It  should  have  been  for  the  costs  including  the 
jail-fees. 

Per  Curiam,  Judgment  reversed. 


Doe  on  the  demise  of  ADELAIDE  AND  ELIZABETH  KRON  v.  MARTIN 

HINSON. 

A  grant  fiom  the  State,  purporting  to  be  made  in  obedience  to  acts  of  the 
General  Asseniblj^,  providing  for  the  relief  of  persons  whose  title  deeds  had 
been  destroyed  by  the  burning  of  the  courthouses,  &c.,  of  Hertford  and 
Montgomery  counties,  was  held. to  be  color  of  title. 

This  was  an  action  of  kjectmkxt,  ti'ied  before  French,  J., 
at  the  Fall  Term,  18G0,  of  Montgomery  Superior  Court. 

The  lessors  of  the  plaintiff  offered  in  evidence  a  grant  from 
the  State,  dated  on  the  14th  of  December,  1849,  which  pur- 
ported to  have  been  issued  "in  obedience  to  an  act  of  the 
General  Assembly  of  this  State,  passed  at  the  session  of  1844-5, 
chapter  53,  ratified  on  the  1st  of  January,  1845,  entitled  "  An 
act  to  extend  the  provisions  of  an  act  passed  at  tlie  General 
Assembly  of  1830-1,  entitled  an  act  for  the  relief  of  such 
persons  as  may  suffer  from  the  destruction  of  the  records  of 
Hertford  county,  occasioned  by  the  burning  of  the  courthouse 
and  clerks  office,  to  the  counties  of  Montgomery  and  Stanly." 
To  entitle  themselves  to  the  benefit  of  said  acts  of  Astembly, 
the  lessors  of  the  plaintiff"  produced  evidence  to  show  that 
tiic  title  deeds  under  which  they  claimed  the  land  in  (question, 
were  consumed  by  the  fire  which  burned  the  courthouse  of 
Montgomery  county  in  the  year  1843;  that  they  had  made 
advertisement  of  a  survey  in  1849,  setting  fourth  their  boun- 
daries, and  the  grounds  on  which  they  claimed  a  right  to  an 


3i8  IN  THE  SUPREME  COURT. 

Kron  v.  Hinson. 


entry  and  grant  for  the  said  land.  They  also  proposed  to 
show  the  entry  made  in  1849,  and  which  is  recited  in  the  said 
grant.  They  further  proved  that  they  had  had  seven  years 
possession  of  the  land  in  question,  and  insisted  that  at  least 
the  grant  oflFered  by  them  was  color  of  title.  The  Court  re- 
jected the  evidence,  and  the  plaintiff  took  a  nonsuit,  and  ap- 
pealed. 

Ashe,  for  the  plaintiff. 

1^0  counsel  appeared  for  the  defendant  in  this  Court. 

Manly,  J.  We  do  not  think  it  necessary  to  discuss  other 
questions  presented  npon  this  record.  There  is  one  ruled  er- 
roneously, without  doubt,  to  the  prejudice  of  the  appellant, 
and  for  that  he  is  entitled  to  a  venire  de  novo :  the  grant  of 
the  14th  of  December,  1849,  to  Adelaide  and  Elizabeth  Kron, 
is  color  of  title.  We  perceive  no  reason  why  it  is  not  so. — 
The  public  authorities  decided  upon  the  evidence  before  them 
that  the  grantees  were  entitled,  under  the  provisions  of  the 
acts  of  xVssembly,  and,  accordingly,  they  made  the  gi-ant.  It 
in  form  purports  to  convey  title — emanates  from  proper  and 
the  highest  officers  of  the  State,  and  is,  therefore,  of  a  charac- 
ter to  induce  a  man  of  ordinary  capacity  to  confide  in  it  as 
sufficient  to  secure  the  enjoyment  of  the  land.  This  is  all 
that  is  necessary  to  constitute  color;  Dohson  y.  Murp}nj,\ 
Dev.  and  Bat.  586 ;  Tate's  heirs  v.  SoutJiard,  3  Hawks  119. 

Many  forms  of  conveyance,  much  less  imposing  than  this, 
have  been  held  to  be  color  ;  as,  for  instance,  an  unregistered 
deed — an  imconstitntional  act  of  the  Legislature — -a  deed 
without  consideration,  and  intended,  merely,  as  color;  Den 
on  the  demise  of  Cainpljell  v.  McArthur,  2  Hawks  33  ;  I^pis- 
Gopal  Church  of  Nexohern  v.  The  Academy,  2  Hawks  233 ; 
Rogers  v.  Male,  4  Dev.  180. 

The  nonsuit  should  be  set  aside  and  a  venire  de  novo  award- 
ed. 

Per  Curiam,  Judgment  reversed. 


JUNE  TEEM,  1861.  349 


Harrinfrton  v.  Wilcox. 


W.  D.  HARRINGTON,  assigyiee,  v.  GEORGE  WILCOX  AND  W.  NASH, 

Execuiors. 

Money  paid  by  B,  the  surety  of  A,  is  a  good  sct-ofl'  against  a  note  payable  to 
A,  which  was  endorsed  after  it  fell  due. 

Tins  was  a  case  agreed,  submniittcd  to  Fkencii,  J.,  at  the 
Fall  Term,  ISGO,  of  I\Ioove  county. 

The  bond  on  wliich  tliis  action  was  brought,  was  made  by 
George  Wilcox,  testator  of  the  defendants,  dated  2Gthj^ovem- 
ber,  1S5G,  for  i^286,  due  one  day  after  date,  and  made  paya- 
I)le  to  William  P.  AVilcox,  his  son.  Prior  to  the  making  of 
this  bond,  W.  P.  Wixcox  borrowed  of  Jolin  Murchison  about 
S400,  and  gave  two  notes,  with  his  father,  the  said  George,  as 
iiis  surety  for  the  amount.  W.  P.  Wilcox  removed  to  Mis- 
sissi[)i)i,  in  the  Fall  of  1856,  and  on  the  day  he  started,  deliv- 
ered tiio  bond,  now  sued  on,  to  the  plaintifi",  with  a  request 
tiiat  lie  siiould  carry  it  to  John  Murchison  and  get  him  to  ac- 
cept it,  and  ci'cdit  the  amount  on  the  notes,  which  helield  on 
him  and  his  father.  This  request  was  made  in  the  presence 
of  George,  the  father,  but  Murchison  refused  to  come  into  the 
arrangement,  saying,  that  "  the  one  he  had  was  good  enough.' 
Subsequently^  after  the  death  of  the  said  George,  the  whole 
amount  of  the  two  notes  and  interest  (8183)  was  collected,  by 
suit,  from  the  defendants,  his  executors.  The  plaintiff  after- 
wards sent  the  note,  in  question,  to  W.  P.  W^ilcox,  who  en- 
dorsed it  to  the  plaintiff,  who  knew  that  the  executors  of 
George  had  paid  the  two  notes  as  stated.  The  defendants  in- 
sisted on  this  payment,  as  sni'cty,  as  a  set-off. 

To  meet  this  plea  of  set-off,  the  plaintiff'  set  out  the  follow- 
ing clauses  in  the  will  of  (ifeorge  Wilcox,  which  was  made 
18th  of  December,  1856  :  "  Item.  I  will  and  bequeath  to  AY. 
P.  Wilcox,  for  tlie  use  and  benefit  of  iiis  child,  William,  the 
sum  of  five  hundred  dollars;  this  sum  to  his  son  and  one  dol- 
lar to  himself,  with  the  amount  of  money  I  shall  have  to  pay 
him,  I  consider  a  fair  and  equitable  portion  of  my  estate." 

By  a  codicil,  made  on  the  8th  of  Janury,  1857,  the  testator 

3 


850  IN  THE  SUPREME  COURT. 

Harrington  v.  Wilcox, 

bequeathed  to  William,  the  infant  son  of  W.  P.  AVilcox,  a 
negro  boy.  These  legacies  have  been  assented  to  by  the  ex- 
ecutors. Not  including  the  legacies  to  the  son  of  AY.  P.  Wil- 
cox, a  distributive  share  of  the  estate  of  George  Wilcox  would 
have  exceeded  the  sum  paid  to  Murchison. 

On  the  consideration  of  the  case  agreed,  his  Honor  being 
of  opinion  with  the  plaintiff  on  the  question  of  set-off,  gave 
judgment  for  the  full  amount  of  the  note  with  interest  and 
costs,  from  which  the  defendants  appealed. 

No  Counsel  appeared  for  the  plaintiff  in  this  Court. 
PhilUjJS,  for  the  defendants. 

Manly.  J.  We  do  not  perceive  why  the  money  paid  by 
the  executors  of  George  Wilcox  on  their  testator's  liability  as 
surety  of  William  P.  Wilcox,  is  not  a  good  set-off'  in  this  ac- 
tion. The  case  states  that  the  note  sued  on  was  transferred 
by  endorsement,  after  it  became  due,  and,  moreover,  at  the 
time  of  the  transfer,  that  the  endorsee  knew  of  the  existence 
of  the  counter  demand,  and  so,  the  debts  being  mutual, 
it  will  follow  that,  in  all  points  of  view,  it  was  a  proper  case 
for  set-off.  The  doctrine  upon  the  subject  of  set-off",  under 
circumstances,  like  the  present,  was  discussed  and  explained 
in  JIaywood  v.  McNaii\  2  Dev.  and  Bat.  283,  and  has  been 
considered,  we  think,  settled,  since  that  day. 

AVe  suppose,  indeed,  it  was  not  intended  to  renew,  here, 
the  questions  settled  by  that  case,  but  to  bring  forward,  through 
the  clauses  of  the  will  quoted,  a  question  as  to  the  effect  of 
that  instrument  upon  the  set-off  proposed. 

AVe  have  examined  the  clauses  and  do  not  find  any  thing 
in  them  to  affect  the  rights  of  the  parties  in  this  suit.  There 
is  no  recognition  of  the  testator's  liability  as  surety  for  AVil- 
liam  P.  AVilcox  upon  the  notes  to  Murchison,  and,  of  course,  no 
release  to  him  of  his  responsibilities  to  testator,  which  might 
arise  from  that  liability. 

The  testator's  opinion  as  to  the  fairness  of  the  division  of 
his  estate,  however  erroneous  and  unjust  to  the  son,  William, 


JUNE  TEEM,  1861.  351 


Whitehead  v.  Smith. 


iloes  not  aifcct  the  question  as  to  what  is  given  in  the  will,  or 
what  exemptions  are  secured  thereby.  There  is  no  ambiguity 
in  the  instrument.  The  testator  admits  his  liability  to  pay  a 
sum  of  money  to  AVilliam,  wliich  we  take  to  be  the  note  in 
suit,  (as  none  other  appears)  but  nowhere  expresses  an  expec- 
tation of  becoming  a  creditor  of  William,  either  by  reason  of 
suretj'ship  or  otherwise,  and,  consequently,  no  where  adds 
such  contingent  amount  to  the  legacy  left  him. 

The  money  then  paid  by  the  executors  of  George,  by  rea- 
son of  testator's  surety-ship  for  his  son  AVilliam,  was  a  subsist- 
ing claim  against  William  P.  at  the  time  of  thetransfcr  of  the 
bond,  and  is,  therefore,  a  proper  set-off  in  the  action. 

We  are  of  opinion,  upon  the  case  agreed,  that  the  judg- 
ment below  is  erroneous  and  should  be  reversed,  and  judg- 
ment entered  for  the  defendant. 

Pkk  Curiam,  Judgment  reversed* 


WHITEHEAD  AND  SUTHERLAND  v.  GEORGE  SMITH  ei  cd. 

Appeal  bonds  sent  from  the  County  to  the  Superior  Courts,  arc  made  by  1st 
and  10th  sections  of  ch.  4,  Rev.  Code,  a  part  of  the  record  sent  up,  and 
cannot  be  questioned  by  plea  and  prool',  at  the  instance  of  the  sureties. 

Motion  for  judgment  on  an  appeal  bond,  before  Osbokne, 
J.,  at  the  last  Spring  Term  of  Duplin  Superior  Court. 

The  action  was  begun  in  the  County  Court,  where  a  judg- 
ment was  taken  against  Smith,  and  he  prayed  an  appeal  to 
Superior  Court.  The  record  of  the  case  was  accompanied  by 
the  ap))eal  bond  on  which  this  motion  is  predicated,  which  is 
in  proper  form,  and  purports  to  have  been  executed  by  the 
defendants  Ibnvard  and  Monk,  as  the  sureties  of  Smith.  On 
judgment  being  rendered  against  the  appellant  in  the  Superi- 
or Court,  Howard  and  Monk  filed  an  affidavit  stating  that  the 


352    .  IN  THE  STJPKEME  COUET. 

Whitehead  v.  Smith. 

the  paper-writing,  filed  in  this  ease,  as  an  appeal  bond,  was 
signed  in  blank  b}-  them  ;  that  no  amount  was  inserted,  nor 
was  any  name  mentioned  as  a  payee,  and  that  all  the  written 
matter  inserted  in  the  said  bond  has  been  inserted  since  the 
blank  form  was  signed  by  them.  The  counsel  for  the  affiants 
then  asked  for  an  issue  to  be  made  up  and  tried,  ofi'ering  to 
prove  the  facts  set  out  in  the  affidavits. 

His  Honor  was  of  opinion  that  the  Court  did  not  have  pow- 
er to  grant  the  motion  of  the  defendants,  and  that  the  record 
certified  from  the  County  Court  was  conclusive  as  to  the  exe- 
cution of  the  bond,  and  therefore  refused  the  motion.  From 
which  judgment,  the  defendants,  Howard  and  Monk,  appealed. 

W.  A.  'Wright,  for  the  plaintiffs. 
Strong,  for  the  defendants. 

Battle,  J.  The  decision  of  the  question  presented  in  this 
case,  depends  upon  the  construction  of  the  first  and  tenth  sec- 
tions of  the  4th  chapter  of  the  Kevised  Code.  The  first  sec- 
tion gives  an  appeal  to  the  superior  court  to  every  free  per- 
son, whether  plaintiff  or  defendant,  wlio  shall  be  dissatisfied 
with  the  sentence,  judgment  or  decree  of  the  count}^  court, 
but  requires  the  appellant,  before  obtaining  the  same,  to  give 
bond  witli  sufficient  security  for  prosecuting  the  appeal  with 
effect,  and  for  performing  the  judgment,  sentence  or  decree 
which  the  superior  court  may  render  against  him.  The  tenth 
section  enacts  that  "  bonds  taken  for  the  prosecution  of  ap- 
peals, shall  make  a  part  of  the  record  sent  up  to  the  superior 
court,  on  which  judgment  may  be  entered  against  the  appel- 
lant and  liis  sureties  in  all  cases  where  judgment  shall  be  ren- 
dered against  the  appellant."  The  question  is,  whether  upon 
a  motit>n  in  the  superior  court  for  a  judgment  upon  the  ap- 
peal bond,  it  has  the  effect  of  a  record,  the  verity  of  which 
cannot  l)e  disputed,  or  is  it  to  be  taken  as  a  bond,  the  execu- 
tion of  which,  though  official,  may  be  denied  by  plea  and 
proof  ? 

We  are  clearly  of  opinion,  that  by  force  of  the  words 
"shall  'Make  a  part  of  the  record  sent  up  to  the  superior  court," 


JUNE  TERM,  1861.  363 

Whitehead  v.  Smith. 

appeal  bonds  can  no  more  be  disputed,  or  have  their  verity 
inquired  into,  than  any  other  part  of  the  record  sent  up  from 
the  count}'-  court.  By  being  made  "  part  of  the  record," 
they  acquire  all  the  sanctit}'-  of  the  record,  and  the  parties  to 
them  are  conclusively  bound  by  them.  Being  given  in  the 
county  court,  it  must  be  presumed,  as  a  matter  of  law,  that 
the  court  took  them  properly,  and  when  they  are  certi- 
fied as  part  of  the  record,  the  law  no  more  intended  that  the 
truth  of  that  part  of  the  record  should  be  a  subject  of  ques- 
tion, than  any  thing  else  which  the  court  had  placed  upon  its 
records  should  be  questioned. 

It  is  a  strong  argument  in  favor  of  this  construction,  that, 
with  regard  to  bail  bonds,  which  are  taken  by  the  sheriff  out 
of  coui't,  but  whicli  are,  nevertheless,  when  returned  to  court, 
60  far  made  a  record,  that  a  scire  facias  must  issue  upon 
them,  the  obligors  are  permitted  to  deny  the  execution  of 
them  by  the  plea  of  non  est  factum^  supported  by  an  affida- 
vit. 

If  tlie  defendants,  never,  in  fact  executed  the  appeal  bond, 
their  remedy  was  by  an  application  to  the  County  Court  to 
have  the  records  as  to  the  bond,  corrected  and  then  to  have 
the  transcript  of  the  perfected  record  sent  to  the  Superior 
Oourt.  Whether  the  count}^  court  would  act  at  the  instance 
of  parties  attempting  to  set  up  such  a  defence  as  that  stated 
by  the  surety  defendants  in  their  affidavit,  may  well  be  doubt- 
ed. The  bond  jiiay  have  been,  and  probably  was  made  per- 
fect before  it  was  delivered,  and  if  so,  the  obligors  have  no 
cause  of  complaint.  At  all  events,  the  Court  might  proper- 
ly, in  the  exercise, of  a  sound  discretion,  refuse  to  listen  to  an 
application  to^amend  by  stating  a  fact  to  raise  a  mere  techni- 
cal objection  at  the  expense  of  the  substantial  merits  and  jus- 
tice of  the  case. 

Our  conclusion  is,  that  upon  the  transcript  of  the  record  be- 
fore him,  liis  Honor,  in  the  Court  below,  decided  right  in  re- 
fusing the  plea  of  the  defendants  in  denial  of  their  bond,  and 
the  judgment  must,  therefore,  be  affirmed. 

Pek  Cukiam,  Judgment  affirmed. 


S54 


m  THE  SUPKEME  COUET. 


State  V.  Lausrlin. 


STATE  V.  LAUGLTN,  a  slave. 

The  willful  and  malicious  setting  fire  to  the  house  of  another,  the  burning  of 
■which  is  only  a  misdemeanor,  will  become  a  capital  felony,  if  a  dwelling- 
house  or  barn,  with  grain  in  it,  is  thereby  burnt,  where  such  burning  is  the 
probable  consequence  of  the  first  illegal  act. 

Upon  indictment  for  the  felonions  burning  of  a  barn  with  grain  or  corn  in  it, 
a  prisoner  cannot  be  convicted  upon  proof  that  he  burnt  a  crib  with  coru 
in  it. 

Indictment  for  felonions  burning',  tried  before  Saunders,  J., 
at  the  Spring  Term,  1861,  of  Robeson  Superior  Court. 

The  indictment  chai-ged  that  the  defendant  "feloniously, 
wilfnll}^  and  maliciously  did  set  fire  to,  and  burn  a  certain 
ham  then  having  corn  in  the  same."  The  proof  was  that  the 
prisoner  maliciously  and  wilfully  did  set  fire  to  a  stable  -with 
fodder  in  it,  and  that  a  crib  with  corn  and  peas  in  it,  which 
stood  witliin  twenty-six  feet  of  the  stabte,  was  partially 
consumed,  but  by  great  exertion  was  saved  from  total  de- 
struction. 

The  Court  charged  as  to  the  crih,  (which  lie  sometimes  in 
the  alternative  calls  a  ham)  "that  if  satisfied  of  the  burning 
of  the  stable  by  tlie  prisoner,  as  it  was  an  unlawful  act,  the 
prisoner  was  responsible  for  the  consequences  ;  and  if  they 
(the  jury)  were  satisfied,  beyond  a  reasonable  doubt,  that  the 
stable  was  likely  to  and  did  communicate  to  the  crib,  and  it 
was  thereby  burnt,  the}^  should  convict;  but  they  were  to  be 
satisfied  tliat  by  the  bnrning  of  tlie  stable,  tlie  burning  of  the 
crib  was  a  reasonable  probability  to  follow  ;  in  which  case  the 
prisoner  would  be  answerable."  Defendant's  counsel  except- 
ed. 

A^erdict,  "guilty."  Sentence  was  pronounced,  and  defend- 
ant appealed. 


Attorney  General,  for  the  State. 
FovjU,  for  the  defendant. 


JUNE  TERM,  1861.  355 


State  V.  Laup;lin, 


Battlk,  J.  The  bill  of  exceptions  presents  foi*  considera- 
tion two  questions,  botii  of  which  are  of  great  importance  to 
the  community,  as  well  as  to  the  prisoner.  The  iirst  is,  whe- 
ther the  wilful  and  malicious  setting  fire  to  the  house  of  an- 
other, the  burning  of  which  is  onlj^  a  misdemeanor,  will  be- 
come a  capital  felony,  if  a  dwelling-house  or  barn  with  grain 
in  it,  be  thereby  burnt,  where  such  burning  is  the  i)robable 
consequence  of  the  first  illegal  act.  Upon  this  question  we 
concur  in  the  opinion  given  in  the  Court  below  :  that  in  such 
a  case,  the  prisoner  is  guilty  of  the  felonious  burning  of  the 
dwelling-house  or  barn,  upon  the  principle  that  he  is  to  be 
held  responsible  for  the  natural  and  probable  consequence  of 
his  first  criminal  act.  In  su])port  of  this  proposition,  the  burn- 
ing of  one's  own  dwelling-house  with  a  malicious  and  unlaw- 
ful intent,  furnishes  a  strong  argument  from  analogy.  Such 
burning  is,  of  itself,  onl}^  a  high  misdemeanor  ;  but  if  the 
dwellings  of  other  persons  be  situated  so  near  to  the  one  burnt, 
that  they  take  fire  and  are  consumed,  as  an  immediate  and 
necessary  consequence  of  the  first  illegal  act,  it  will  amount 
to  a  felony.  See  2  East.  PL  Cr.  1030  and  1031,  and  the  cases 
of  J^e,i'  V.  Probcrt  and  Bex  v.  Isaac^  there  cited. 

The  second  question  is,  whether  upon  an  indictment  for  the 
felonious  burning  of  a  barn  with  grain,  or  corn  in  it,  the  pri- 
soner can  be  convicted,  upon  proof,  that  he  burnt  a  crib  with 
corn  in  it.  He  certainly  cannot,  unless  a  barn  and  crib  mean, 
in  law,  the  same  thing,  or  the  testimony  shows  that  they  are 
in  fact  the  same.  The  bill  of  exceptions  does  not  set  forth 
any  proof  that  the}'  are  the  same,  and  we  are  unable  to  find  any 
authorit}',  in  the  law,  which  pronounces  them  to  be  the  same. 
In  Webster's  Dictionary,  a  "  barn"  is  said  to  be  "  a  covered 
building  for  securing  grain,  hay,  flax,  and  other  productions 
of  the  earth."  It  is  a  word  known  to  the  English  law,  and  is 
mentioned  in  the  statute  23rd  lien,  8,  chap.  1,  section  3,  as  a 
house,  the  wilful  burning  of  M'hich,  while  it  has  grain  or  corn 
in  it,  shall  be  a  felony  without  the  benefit  of  clergy.  A  crib, 
according  to  Webster,  means,  in  the  United  States,  "  a  small 
building,  raised  on  posts  for  storing  Indian  corn."     We  aro 


356  IN  THE  SUPREME  COURT. 

Luther  v.  Skeen, 

not  aware  tliat  it  is  now,  or  ever  has  been,  used  in  tliat  sense 
in  England,  and  we  have  not,  as  yet,  seen  it  used  in  any  of 
the  acts  of  our  Assembly.  From  this,  it  seems  tliat  a  barn 
and  a  crib  are  houses  of  a  different  kind,  and  used,  ordinarily, 
for  different  purposes,  and  we  learn,  unofficially,  that  they 
are  so  known  throughout  the  greater  part,  if  not  the  whole,  of 
this  State.  The  burning  of  a  crib  with  corn  in  it,  is,  then,  a 
different  offence  from  the  burning  of  a  barn  with  corn  in  it, 
and  a  prisoner  chaiged  with  the  latter  cannot  be  convicted, 
upon  proof  of  his  having  committed  the  former.  Indeed,  the 
burning  of  a  crib,  though  it  may  have  grain  or  corn  in  it  at 
the  time,  is  not  made  a  felony  at  all,  and  it  will  be  for  the 
Legislature  to  consider  whether  such  a  building  should  not, 
under  similar  circumstances,  have  the  protection  which  is  now 
extended  by  the  2ud  section  of  the  Sttth  chapter  of  the  Revis- 
ed Code,  to  barns.  This  case  may,  possibly,  also  suggest  to 
that  honorable  body,  that  the  wilful  and  malicious  burning  of 
stables  with  the  intent  to  consume  and  destroy  the  horses 
that  may  be  in  them,  is  an  offense  quite  as  flagrant,  as,  and 
much  more  cruel,  than,  the  burning  of  either  cribs  or  barns, 
no  matter  how  much  corn  or  grain  they  may  contain. 

The  judgment  must  be  reversed,  and  a  certificate  to  that 
effect  must  be  sent  to  the  Court  below  in  order  that  the  pri- 
soner may  have  a  venire  de  novo. 

Per  Cukiam,  '  Jud<::ment  reversed. 


ISHAM  LUTHER  v.  NOAH  R.  SKEEN. 

Reports  that  the  plaintifT  swore  to  a  lie  or  Hes  in  a  distant  count}',  cannot 
jiroperly  be  submitted  to  a  jury  in  an  action  of  slander  as  elements,  from 
which  a  jury  are  to  make  up  an  estimate  of  their  own  of  the  character  of 
the  plaintiff. 

A  jury  in  estimating  character,  are  to  take  the  testimony  of  witnesses  who 


JUNE  TEJiM,  1861.  357 

Lutber  v.  Skeen. 

arc  supposed  to  be  able  or  capable  of  reflecting  in  general  terms,  the  judg- 
ment of  the  public. 
Matters  elicited  on  a  cross-examination,  which  arc  only  admissible  to  weaken 
the  force  cf  the  testimony  in  chief,  ought  not  to  go  to  the  jury  for  a  difler- 
ent  purpose. 

This  was  an  action  of  slander,  ti'ied  before  Howard,  J.,  at 
the  last  Spring  Term  of  Davidson  Superior  Court. 
K'The  action  was  brought  for  charging  the  ])laintiff  witli  hav- 
ing trnni])cd  up  and  sworn  to  an  account. 

The  following  is  the  case  sent  to  this  Court:  "The  plain- 
tiff introduced  several  witnesses  to  prove  his  general  charac- 
ter, who  said  his  character  was  good.  The  defendant's  coun- 
sel then  asked  them  if  the}'  had  not  heard  that  plaintiff  had 
sworn  to  a  lie  in  Handolph  ;  to  this  plaintiff's  counsel  except- 
ed. The  Court  then  said  to  defendant's  counsel  'you  must 
not  ask  the  witness  questions  as  to  any  particular  offence,  or 
what  any  ])articular  jicrson  had  said,  but  you  may  ask  if  there 
was  a  current  report  in  the  neighborhood  that  plaintiff  had 
sworn  to  lies  while  living  in  Kandol|)ii.'  To  this  question, 
plaintiff's  connsel  excepted.  All  of  the  M-itnesses  answered 
that  tJiere  vjas.  Upon  being  further  questioned  by  ])laintiff's 
counsel,  some  of  them  said  the  report  was  confined  to  a  par- 
ticular suit  with  one  Xance.  Others,  that  the  report  cover- 
ed two  instances  of  false  swearing,  at  least.  Each  of  the  wit- 
nesses said  he  did  not  remember  to  have  heard  the  report 
from  more  that  tliree  or  four  persons,  but  that  he  heard  tiioso 
persons  speak  of  it  before  the  dispute  between  plaintiff  and 
defendant  arose.  The  plaintiff  moved  from  llandolph  to  Da- 
vidson four  or  five  years  ago. 

The  Court  charged  the  jury  that  the  testimony  was  permit- 
ted to  go  to  thcjii,  not  as  a  justificatiou,  but  for  tlieir  conside- 
ration in  awarding  damages;  that  it  was  for  them,  alone,  to 
say  what  damages  ought  to  be  given  to  the  plaintiff,  either  for 
the  injury  to  his  cliaracter,  or  as  an  example  to  deter  otliers 
from  slandering  their  neighbor,  and  that  it  was  right  and  i)ro- 
per  that  they  should  know  the  e.xact  standing  of  plaintiff;  as 
it  was  supposed  that  they  would  give  greater  damage  for  an 


358  IN  THE  SUPREME  COURT. 


Lather  V.  Skeen. 


iinputatictii  niton  the  character  of'  a  man  al)ove  sus])icion  or 
reproach,  than  for  an  inipntation  njion  one  whose  character 
M'as  not  60  fair  ;  bnt  that  was  a  matter  about  which  they  were 
allowed  to  exercise  their  own  discretion.''  Plaintill's  counsel 
excepted  to  the  chartje. 

A'erdict  t'oi-  jtlaintiiF  for  s-2.  Judii-nicnt  and  ai»i)cal  by 
plaintiff. 

JI('Li'(7n,  for  the  plaintiff. 
K'tlireU.  for  the  defendant. 

Batti.];,  J.  I'pon  the  case  iiresented  to  this  Court,  we 
tliink  there  is  error  in  tiiis  :  His  Honor  allowed  matters  eli- 
cited on  a  cross-examination,  and  which  were  oidy  admissible 
to  weaken  the  the  foix-e  of  the  testimony  in  chief,  to  go  to 
the  jury  for  a  different  ]")urpose. 

The  evidence  in  reg-ard  to  the  reports  in  Randolph  C(Minty, 
■were  impi-opei-ly  submitted  to  the  jury  as  elements  from  which 
they  mii^ht  make  nj)  an  estimate  of  their  own  of  the  charac- 
ter of  plaintiff.  That  is  not  the  M'ay  in  which  juries  are  in- 
formed as  to  character.  They  take  the  testimony  of  a  wit- 
ness who  is  supposed  to  be  capable  of  reflecting  in  general 
terms  the  judgment  of  the  public,  and  rel}'  upon  that.  Any 
other  mode  would  but  multijd}'  occasions  for  scandalous  strife, 
and  jirove  impracticable  in  its  i-esults.  A  current  report  and 
(jeneral  character  are  not  equivalent  and  convertable  terms. 
The  one  may  be  evidence  of  the  other,  but  is  not  conclusive- 
h'  so. 

While,  therefore,  the  evidence  of  the  report  in  Randolph 
might  be  properly  brought  out  on  a  cross-examination  with 
a  view  to  analyse  and  test  the  foundation  of  the  witness'  testi- 
mony, and  might  bo  used  by  the  jury  in  estimating  the  weight 
of  such  testimony,  it  was  notpro])er  it  should  be  used  in  any 
other  connexion.  It  was  not  proper  it  should  be  used  as  direct 
evidence  of  general  chai'actcr. 

There  should  be  a  venire  de  novo. 

Pkii  CnuAM,  Judgment  reversed. 


JUNE  TEEM,  1861.  359 

Hanoll  V.  Davis. 

NATHAN  HARRELL  d  al  v.  SMITHY  DAYI.^. 

A  deed  of  gift  of  slaves,  made  in  1823,  to  a  married  woman,  for  her  natural 
life,  and  after  her  death,  to  the  heirs  lawfully  herjotten  of  Iter  body,  passes 
the  absolute  property  in  such  slaves  to  her  husband. 

Action  of  TRovKK,  tried  before  Oshoknk,  J.,  at  tlie  Spring 
Term,  1801,  of  Greene  Superior  Court. 

The  action  was  brought  for  the  conversion  of  certain  slaves, 
and  the  title  of  tiie  plaintiffs  do)>ends  upon  the  construction  of 
the  following  deed  of  gift,  viz  : 

"State  of  Xorth  Carolina,  Greene  County.'' 

"  Know  all  men  by  these  presents,  that  I,  Lewis  llarrell,  of 
tlie  State  aforesaid  and  county  of  Lenoir,  doth  for  and  in  con- 
sideration of  the  love  and  good  will  and  natural  affection  I 
liave  and  bear  to  my  daughter-in-law,  Laney  Ayton  Jlarrell, 
wife  of  Joseph  ILirrell,  doth  lend  unto  the  said  Laney  Ayton 
llarrell,  one  negro  giil,  bj"  the  name  of  Xance,  about  sixteen 
years  of  age,  and  her  daughter,  Phillis,  about  four  months  old, 
them  and  their  increase  to  the  said  Laney  llarrell,  during  her 
natural  life-time,  and  after  lier  death,  1  give  the  said  negro 
girl,  Xancc,  and  her  daughter,  Phillis,  and  their  increase,  to 
the  heirs  of  my  daughter-in-law,  lawfully  begotten  of  her 
body,  to  them  and  their  assigns  for  ever.  In  witness  whereof 
I  have  hereunto  set  my  hand  and  seal,  this  12th  day  of  Ma}', 
1823.  Lewis  IIaukkll,  [sea!.]'' 

Witness  present, 
/.sr/v/c  Ward. 

The  i)laintiffs  arc  the  children  of  ^Iva.  llarrell,  wife  of  Jo- 
i-ci)h  llarrell,  who  was  living  at  the  time  of  the  making  of  the 
deed.  Tliey  contended  under  the  limitation  contained  in  tho 
deed  to  the  heirs  of  Mis.  llarrell,  lawfully  begr)tten,  that  they 
are  entitled  to  the  slaves  and  their  increase,  bhe  being  now 
dead. 

The  defendants  claimed  title  under  a  conveyance  from  Jo- 
seph ILarrell,  the  husband  of  Lfiney  Ayton  Harrell,  made  in 
her  life-time. 


360  IN  THE  SUPREME  COUET. 

Hedrick  v.  Wagoner. 

B}'- consent,  the  jury  rendered  a  verdict  for  the  plaintifis, 
subject  to  the  opinion  of  the  Court,  as  to  the  legal  etfect  of 
the  deed  of  gift,  and  the  Court,  on  consideration  of  the  point 
reserved,  being  of  opinion  with  the  defendant,  set  aside  the 
verdict,  and  ordered  a  nonsuit,  from  which  plaintiff  appealed. 

Strong^  for  the  plaintiffs. 

J.  TF.  Bryan,  for  the  defendant. 

Pearson,  C.  J.  The  legal  effect  of  the  deed  of  gift  is  too 
plain  to  admit  of  argument.  The  absolute  estate  vested  in 
Mrs.  Ilarrell,  by  the  application  of  two  well-settled  principles 
of  law,  both  of  which  exclude  the  plaintiffs  from  any  benefit 
under  the  deed. 

At  the  date  of  the  deed,  1823,  the  common  law  was  appli- 
cable as  well  to  the  transfer  of  slaves  as  of  other  personal  pro- 
perty, and  according  to  an  established  principle,  a  life-estate 
consumed  the  entire  estate,  and  a  limitation  over  was  inope- 
rative, except  in  a  will  or  deed  of  trust. 

In  the  second  place,  it  is  clear,  that  the  "  rule  in  Shelly's 
case"  applies.  So  that  the  whole  estate  vested  in  Mrs.  Ilar- 
rell byj;he  deed  and  passed  to  her,  and  then  to  her  husband 
jure  onariti. 

Per  Curiam,  Judgment  affirmed.     ■ 


CASPER  HEDRICK  v.  HENRY  WAGONER,  Executor. 

Where  a  itarent  put  a  slave  into  the  possession  of  his  child,  with  an  intention 
to  make  it  an  advancement,  but  afterwards  changed  his  mind  and  took  it 
back,  it  was  held  that  the  law  implied  no  obligation  on  the  part  of  the  pa- 
rent to  pay  for  keeping,  feeding  and  clothing  the  slave. 

Action  of  assumpsit,  tried  before  Howard,  J.,  at  the  last 
Spring  Term  of  Davidson  Superior  Court. 


JUNE  TEEM,  1861.  361 


Hedrick  v.  Wagoner. 

Joseph  Wagoner,  the  defendant's  testator,  in  the  year  1839, 
placed  in  the  possession  of  his  daughter,  then  a  widow,  a  cer- 
tain negro  woman  slave.  The  daughter  was  afterwards  mar- 
ried to  the  plaintiff,  who  took  charge  of  the  woman  and  kept 
her  and  her  children,  of  which  she  had  several,  until  the  year 
1858,  in  the  mean  time  feeding  and  clothing  them.  In  that 
year,  testator  went  to  plaintiff's  house,  and  complaining  that 
plaintiff"  was  about  to  run  the  slaves  from  the  countr}',  de- 
manded, as  the  condition  upon  M'hich  he  would  let  them  re- 
main, that  plaintiff'  should  give  bond  and  security  not  to  re- 
move them  ;  v.'hich  tiie  latter  declined  doing,  and  so  the  bail- 
ment terminated.  Hedrick  said,  he  ought  to  have  pay  for 
his  trouble  ;  to  which  Wagoner  rejilied,  he  would  give  him 
$50  if  that  would  satisfy  him.  This,  the  plaintiff"  refused. 
Wagoner  then  said,  "pick  out  two  men,  and  whatever  they 
say,  I  will  pay  you,"  but  tliis  was  never  done,  and  shortly  af- 
terwards, tliis  suit  was  brought. 

By  the  consent  of  the  counsel  on  both  sides,  the  qucstionpf 
damages  was  submitted  to  the  jury,  the  Court  reserving  the 
question  of  plaintiff 's  right  to  recover,  with  leave  to  set  aside 
the  verdict  and  enter  a  nonsuit,  should  the  opinion  of  the 
Court  be  adverse  to  plaintiff''s  cause  of  action.  The  jury 
found  damages  to  the  amount  of  §300. 

Afterwards,  the  Court  set  aside  the  verdict  and  ordered  a 
nonsuit,  from  which  plaintiff"  appealed. 

Kittrell.,  for  the  plaintiff". 

Gorrell  and  MoLean^  for  the  defendant. 

Manly,  J.  The  view  taken  of  this  case  in  the  Court  be- 
low, was  clearly  correct.  It  is  the  ordinary  case  of  a  slave 
put  into  the  possession  of  a  child,  and  intended  by  the  parent 
as  an  advancement,  but  with  respect  to  which  he  changes  his 
mind  and  takes  the  slave  away. 

The  law  implies  no  obligation  in  such  a  case  on  the  part  of 
the  parent  to  pay  for  keeping,  clothing,  feeding,  and  the  like. 


362  m  THE  SUPKEME  COURT. 


Haden  v.  Rail  Road  Company. 


Tlie  negroes  were  not  kept  upon  any  sncli  expectation,  mucli 
less  upon  any  mutual  understanding  to  that  effect. 

There  was  no  legal  or  equitable  obligation  to  allow  them 
to  remain  under  any  circumstances,  and  the  law  will  not  raise 
an  assumpsit  to  pay  damages  for  doing  what  the  party  had  a 
right  to  do,  nor  will  it  interpolate  upon  the  transaction  a  lia- 
bility, not  contemplated  by  either  party  during  its  continu- 
ance. 

'   The  principle  of  the  case  falls  within  that  of  tlie  University 
against  JlcJVcm'^s  Executors,  2  Ire.  Eq.  605. 

The  proposition  on  the  part  of  defendant's  testator  to  pay 
'$50,  (which  was  rejected  by  the  plaintiff)  was  in  furtherance 
of  a  negotiation  for  peace,  and  does  not,  in  any  way,  affect 
the  rights  of  the  parties,  and  of  the  same  character  is  the 
proposition  (not  carried  into  execution)  to  submit  it  to  men. 
The  judgment  of  the  Court  below  should  be  atfirmed. 

Per  Cukiam,  Judgment  alKrmed* 


JAMES  H.  HADEN  v.  NORTH  CAROLINA  RILROAD  COMPANY. 

Where  a  hired  slave  was  tal<en  ill  with  t3^phoid  fever,  and  the  hirer,  not 
knowing  the  nature  of  the  disease,  sent  him  on  the  railroad  cars,  in  pleas- 
ant weather,  forty  miles,  to  a  place  deemed  more  favorable  to  the  patient, 
where  he  remained  one  day  in  proper  hands  without  a  physician's  being 
called  in,  and  was  then  sent  off  three  miles  further  to  the  care  of  his  mas- 
ter, it  appearing  that  the  ascertainment  of  the  existence  of  that  disease,  was 
a  matter  of  skill,  and  not  within  the  scope  of  ordinary  intelligence,  it  was 
held  that  although  the  disease  was  aggravated  by  the  treatment  of  the 
patient,  yet,  that  these  facts  did  not  show  such  a  want  of  proper  care  and 
prudent  management  as  to  subject  the  hirer  to  damages  for  the  death  of 
the  slave. 

Action  on  the  case  for  negligence  in  taking  care  of  a  slave, 
Dick,  hired  to  defendant,  tried  before  Howaed,  J.,  at  Spring 
Term,  1861,  of  Davidson  Superior  Court* 


JUNE  TEEM,  1861.  363 


Haden  v.  Eail  Eoad  Co. 

The  plaintiff  hired  to  the  defendant  a  health}^,  able  bodied 
slave  for  the  year  1858,  Avithont  any  special  stipulation  as  to 
his  management,  to  Avork  as  a  section  hand  on  the  railroad. — ■ 
lie  was  located  on  a  section  about  six  miles  from  Charlotte, 
and  on  Snnda3''  previous  to  the  time  in  question,  had  been 
permitted  to  go  on  a  train  to  see  his  master.  On  the  Wed- 
nesday morning  he  reported  himself  to  the  section-master, 
(defendant's  agent,)  as  too  unwell  to  work,  whereupon,  he  was 
directed  to  go  to  the  shanties  about  two  hundred  yards  from 
the  road.  In  the  evening,  the  section-master  went  to  see  him, 
antl  found  him  sitting  uj).  He  complained  of  pain  in  the 
head  and  breast,  and  said  ho  had  been  taken  with  a  headache 
on  ]\Ionday.  The  master  gave  him  a  teaspoon  full  of  lauda- 
num, and  put  a  mustard  plaster  to  his  iicad.  On  next  morn- 
ing, the  slave  was  in  bed,  where  he  remained  all  day.  lie 
expressed  an  anxiet}-  to  go  home,  and  on  the  next  morning 
was  permitted  to  do  so.  ITc  walked  down  to  the  road,  and 
and  went  on  the  train  to  lloltsburg,  forty  miles  from  where  he 
had  worked,  taking  with  him  a  note  from  the  section-master 
to  the  station  agent  at  lloltsburg,  directing  him  to  send  word 
to  the  owner  of  the  negro,  who  lived  near  there,  to  come  for 
him.  The  train  arrived  about  ten  o'clock  that  morning.  The 
station  agent  tirst  saw  the  slave  after  his  arrival,  standing 
near  the  track,  very  weak  and  scarcely  able  to  stand.  lie 
was  coughing  and  spitting  blood,  and  complained  of  severe 
pains  in  liis  head  and  bi-east.  The  station  agent  had  him  as- 
sisted to  a  shanty,  and  after  getting  through  his  business  went 
to  see  him,  and  had  some  coffee  made  for  him  ;  he  said  ho  had 
not  been  able  to  eat  for  two  days.  About  11  o'clock,  the 
agent  sent  a  messenger  to  plaintiff's  mother,  wlio  lived  about 
three  miles  off,  to  send  for  Dick,  About  sunset,  a  servant 
canie  with  a  buggy  and  took  the  boy  to  the  house  of  Mrs. 
lladcn,  plaintiff's  mother.  Doctor  Sheniwell  was  sent  for 
early  that  night,  and  found  the  patient  with  high  fever — alow 
(piick  iiulse,  and  very  much  prostrated.  It  was  a  case  of  ful- 
ly developed  typhoid  fever,  complicated  with  an  affection  of 
the  liver,  and  he  thought  there  was  hardly  a  hope  of  the  boy's 


364  m  THE  SUPREME  COURT. 

Haden  v.  Rail  Road  Co. 

recoveiy.  Doctor  WJiitehead  of  Salisbniy,  came  to  see  the 
patient.  He  said  he  thought  tlie  case  well  nigh  hopeless,  but 
he  did  all  he  could  for  liim.  His  testimony  agreed  with  that 
of  the  other  physician  as  to  the  symptoms.  The  slave  died 
that  night. 

Doctor  Payne  testified  that  from  the  description  of  the 
slave's  condition  on  Friday  morning  before  he  started  for 
Holtsburg,  a  man  of  ordinary  intelligence  would  not  liave 
been  able  to  discover  that  he  had  typhoid  fever,  though  a 
physician  would. 

The  Court  submitted  to  the  jury  tlie  question,  whether  they 
believed  that  the  condition  of  the  slave  when  he  anived  at 
Holtsburg,  was  tlie  ordinary  developements  of  disease,  or  whe- 
ther the  disease  was  materially  aggravated,  and  the  danger  to 
the  slave's  life  increased  b^^  the  ride.  He  also  submitted  to 
the  juiy  the  question  of  damages,  reserving,  with  the  consent 
of  both  parties,  the  question  of  negligence.  The  jury  found 
that  the  disease  Avas  materiall}^  aggravated,  and  the  danger 
increased  by  the  ride.     The}^  assessed  damages  to  $800. 

The  Court,  being  of  opinion  that  there  was  such  negligence 
on  the  part  of  the  defendants'  agents,  both  in  sending  the 
slave  by  railroad,  and  in  not  sending  for  a  ph^'sician  while 
the  slave  was  at  Hotsburg  and  sending  him  off  in  the  buggy, 
as  to  make  them  liable,  gave  judgment  for  the  plaintiff,  and 
the  defendants  appealed. 

KiUrell^  for  the  plaintiff. 

B.  F.  Moore  and  Gorrcll.,  for  the  defendants. 

Battle,  J.  The  question,  whether  the  defendant  was  guil- 
ty of  ordinary  neglect  in  taking  care  of  the  slave  hired  from 
the  plaintiff,  was  one  of  law,  which  his  Honor  properly  un- 
dertook to  decide,  but  upon  the  facts  stated  in  the  bill  of  ex- 
ceptions, we  do  not  concur  in  the  opinion  which  he  pronounc- 
ed upon  it.  Ordinary  neglect  is,  the  want  of  ordinary  care, 
and  that,  as  applied  to  a  hired  slave,  signifies  such  a  degree 
of  care  as  a  person  of  ordinary  prudence  would  take  of  him 


JUNE  TERM,  1861.  365 


Haden  v.  Rail  Road  Co. 


under  similar  circumstances ;  Ileathcock  v.  Pennington^  11 
Ire.  Rep.  640  ;  Couch  v.  Jones^  4  Jones  402,  AVliether,  where 
a  slave  is  sick,  tlie  hirer  is  bound,  without  an  express  agree- 
ment, to  that  effect,  to  procure,  at  his  own  expense,  medical 
attendance  for  him,  has  been  a  subject  of  dispute  in  this  State, 
and  has  not  yet  been  settled  by  any  direct  adjudication, 
though  it  has  been  decided  that  if  he  call  in  a  physician,  he, 
and  not  the  owner  of  the  slave,  is  bound  to  pay  the  bill ;  Hay- 
wood V.  Long^  5  Ired.  438.  But  supposing  that  the  ordinary 
care  which  the  hirer  must  take  of  the  slave  includes  the  du- 
ty of  procuring  the  advice  and  assistance  of  a  physician  when 
necessary,  as  we  are  inclined  to  think  it  does,  yet,  we  cannot 
find  any  want  of  due  care  in  the  circumstances  of  the  present 
case.  The  agents  of  the  defendant  may,  possibly,  not  have 
acted  for  the  best,  but  they  seem  to  have  been  desirous  of  do- 
ing so,  and  we  cannot  but  think  the  owner  would  have  pur- 
sued the  same  course  in  a  similar  conjuncture  of  circumstan- 
ces. It  was  testified  by  a  physician  that  the  agent  under.whom 
the  slave  was  working  at  the  time,  when  he  was  taken  sick, 
could  not  have  dicovered  that  the  disease  was  typhoid  fever, 
and  we  are  not  informed  that  he  knew^,  or  had  any  reason  to 
suppose,  that  the  sending  him  on  the  cars  to  Iloltsburg,  in  the 
cool  of  the  morning,  would  aggravate  the  symptoms.  After 
the  arrival  of  the  patient  at  Iloltsburg,  it  was  a  question  ad- 
mitting of  some  doubt,  whether  it  was  better  to  keep  him  at 
a  country  depot,  at  w^hich  we  are  not  told  that  there  were 
proper  accommodations  for  a  sick  person,  or  to  send  him  in 
the  cool  of  the  afternoon,  three  miles  to  the  house  of  the 
plaintiff's  mother,  where  he  w^as  sure  to  have  the  kindness 
and  care  of  a  woman's  ministrations.  Supposing  that  the 
agent  erred,  was  his  error  so  obvious  a  one,  that  a  man  of  or- 
dinary prudence  would  not  have  fallen  into  it  ?  "We  certain- 
ly cannot  say  that  it  was.  The  standard  of  ordinary  prudence 
and  care,  is  from  its  very  nature,  an  indefinite  one,  and  the 
want  of  it  is  frequently  very  difficult  to  ascertain.  In  the  pres- 
ent case,  we  cannot  say  that  the  slave  would  probably  have 
recovered  had  the  course  contended  for,  on  the  part  of  the 

4  • 


366  IN  THE  SUPEEME  COURT. 

Barnes  v.  Barnes. 

plaintiff,  been  pursued ;  nor  can  we  see  any  necessary  conse- 
quence of  his  death  from  the  manner  in  which  he  Avas  treat- 
ed. We  are  strongly  inclined  to  the  opinion  that  the  disease 
was  one  of  those  which  not  unfrequently  seize  the  most  hardy 
and  vigorous  persons,  and  bring  them  to  the  grave  in  spite 
the  kindest  attentions,  and  the  ablest  medical  skill. 

Differing  from  his  Honor,  upon  the  question  of  ordinary 
neglect,  as  applied  to  the  circumstances  of  the  present  case, 
we  must  reverse  the  judgment,  and  order  a  venii^e  de  novo. 

Per  Curiam,  Judgment  reversed. 


JOHN  BARNES  v.  JOHN  T.  BARNES,  et  al 

The  provision  of  the  Act  of  Assembly,  passed  on  11th  day  of  May,  1861, 
commonly  called  the  "Stay  Law,"  forbidding  jury  trials,  and  trials  before 
Justices  of  the  Peace,  and  the  issuing  of  executions,  and  sales  under  exe- 
cutions and  deeds  of  trust,  held  to  be  unconstitutional  and  void. 

This  was  an  action  of  debt,  tried  before  Heath,  J.,  at  the 
last  Spring  Term  of  Wilson  Superior  Court. 

During  the  pendency  of  this  case  in  the  Superior  Court,  the 
defendants  pleaded,  since  the  last  continuance,  the  following 
act  of  Assembly  : 

An  Act  to  Pkovide  against  the  Sacrifice  of  Property  and 
TO  suspend  proceedings  in  certain  cases. 

Sec.  1  Be  it  enacted  hy  the  General  Assemhly  of  the  State 
of  North  Carolina^  and  it  is  hereby  enacted  by  the  authority 
of  the  same,  That  no  execution  of  feri  facias  or  venditioni 
exponas  founded  upon  a  judgment  in  any  suit  or  action  for 
debts  and  demands  due  on  bonds,  promissory  notes,  bills  of 
exchange,  covenants  for  the  payment  of  money,  judgments, 
accounts,  and  all  other  contracts  for  money  demands,  or  con- 
tracts for  specific  articles,  other  than  those  upon  oflB.cial  bonds 


JUNE  TEKM,  1861.  867 

Barnes  v.  Barnes. 

or  in  favor  of  the  State,  or  against  non-residents,  shall  be  is- 
sued from  the  passage  of  this  act,  by  any  court  of  record  or 
magistrate,  for  the  sale  of  property,  until  otherwise  provided 
by  law ;  nor  shall  there  be  any  sales  under  deeds  of  trust  or 
decrees,  unless  by  the  consent  of  parties  interested,  until  oth- 
erwise provided  by  law. 

Sec.  2.  Where  such  executions  have  issued,  and  are  now  in 
the  hands  of  officers,  whether  levied  or  not,  the  officer  hav- 
ing such  executions  shall  return  the  same  to  the  magistrate 
or  court  from  whence  they  issued,  without  further  execution 
thereof,  and  executions  upon  tlie  same  judgments  shall  not 
issue  again  until  the  operation  of  this  act  ceases  :  Provided,, 
That  tliis  act  shall  not  be  construed  to  discharge  the  lien 
which  has  alread}'-  been  ac(juired  by  the  taking  out  such  exe- 
cution. 

Seo.  3.  There  shall  be  no  trials  of  any  cases  requiring  the 
intervention  of  a  jury,  nor  upon  warrants  before  a  Justice  of 
the  Peace  in  any  suit  or  action  for  debts  or  demands  due  on 
bonds,  promissory  notes,  bills  of  exchange,  covenants  for  the 
payment  of  money,  judgments,  accounts,  and  all  other  con- 
tracts for  money  demands,  or  contracts  for  specific  articles. 

Sec.  4.  This  act  shall  not  apply  to  liabilities  w^on  the  part 
of  public  officers,  either  to  the  State,  counties,  corporations, 
or  individuals;  nor  to  State,  county,  or  corporation  taxes; 
nor  to  debts  hereafter  contracted  ;  nor  to  debts  due  the  State, 
nor  to  debts  due  from  non-residents,  nor  to  the  annual  collec- 
tion of  interest ;  Provided,  That  no  note,  bill  of  acceptance, 
or  other  obligation,  the  consideration  of  which  is  any  debt  or 
obligation  at  present  existing,  shall  be  held  or  considered  as 
a  debt  hereafter  contracted. 

Sec.  5.  The  interest  which  has  accrued  since  the  first  day 
of  January,  A.  D.  1861,  or  which  may  hereafter  accrue  upon 
any  bond  or  promissory  note  which  was  payable  before  the 
passage  of  this  act,  may  be  collected  by  action  of  debt  or  as- 
sumpsit, before  any  justice  of  the  peace,  if  the  amount  of  in- 
terest sued  for  be  within  his  jurisdiction,  and  if  not,  then  in 
the  county  or  superior  courts ;  Provided,^  IwioeveVy  That  no 


368  m  THE  SUPREME  COUET. 

Barnes  v.  Barnes. 

warrant  or  suit  shall  be  brought  except  for  the  interest  of  one 
year  or  more,  (always  making  an  even  number)  by  computing 
the  time  from  the  day  when  the  interest  upon  such  bond  ©•r 
promissory  note  began  to  accrue. 

Sec.  6.  That  any  person  who  is  about  to  remove  his  proper- 
ty out  of  the  State  without  the  consent  of  his  creditors,  shall 
not  be  entitled  to  the  benefit  of  this  act. 

Sec.  7.  That  all  mortgages  and  deeds  in  trust  for  the  bene- 
fit of  creditors  hereafter  executed,  whether  registered  or  not, 
and  all  judgments  confessed  during  the  continuance  of  this 
act,  shall  be  utterly  void  and  of  no  effect. 

Sec.  8.  The  time  during  which  this  law  is  in  force  shall  not 
be  computed  in  any  case  where  the  statute  of  limitations  comes 
in  question. 

Sec.  9.  That  this  act  shall  be  in  force  from  and  after  its  rat- 
ification. 

Kead  three  times  and  ratified  in  General  Assembly,  this 
11th  day  of  May,  A.  D.  1861. 

And  on  the  cause  being  called  for  trial,  defendant's  coun- 
sel urged  the  provisions  of  the  said  act,  as  a  reason  why  he 
should  not  go  to  trial,  and  why  judgment  should  not  go  against 
him.  His  Honor  overruled  the  objection  and  ordered  the 
trial  to  proceed,  and  on  a  verdict  being  rendered  for  the 
plaintiff,  passed  a  judgment  and  ordered  execution,  from 
which  the  defendants  appealed  to  this  Court.  Questions  in- 
volving the  constitutionality  of  the  Stay  Law  arose  at  this 
term  on  motions  for  the  issuing  of  executions  on  judgments 
in  this  Cuurt,  which  are  all  considered  in  the  opinion  of  the 
Court. 

JS.  F.  Moore,  for  the  plaintiff. 
Si/rong,  for  the  defendants. 

Peaeson,  C.  J.  The  plea,  since  the  last  continuance,  by 
which  the  defendants  claim  the  benefit  of  what  is  commonly 
called  the  "  Stay  Law,"  presents  for  our  decision  the  ques- 
tion of  the  constitutionality  of  an  act  of  the  last  session  of  the 


JUNE  TEEM,  1861.  369 

Barnes  v.  Barnes. 

General  Assembly — entitled  "  An  Aet  to  provide  against  the 
sacrifice  of  property,  and  to  suspend  proceedings  in  certain 
cases."  The  same  question  was  raised  in  every  case  decided 
at  this  term,  where  the  judgment  in  the  Court  below  is  affirm- 
ed, by  motions  for  judgment  and  that  execution  shall  be  is- 
sued. 

Whether,  in  the  present  condition  of  the  country,  the  stat- 
ute be  expedient,  is  a  question  of  which  wc  have  no  right  to 
judge.  Our  province  is  to  give  judgment  on  the  question  of 
the  constitutional  power  of  the  Legislature  to  pass  the  stat- 
ute. 

In  the  discharge  of  this  duty,  we  are  relieved  by  the  fact, 
that  a  question  of  such  importance  is  not  now  presented  for 
the  first  time,  so  as  to  put  upon  us  the  responsibility  of  ma- 
king a  decision  on  the  strength  of  our  own  convictions;  for 
we  find  that  the  line  has  been  plainly  marked,  in  fact  "blaz- 
ed out"  by  many  previous  adjudications,  so  that  it  can  be 
easily  followed,  and  all  we  have  to  do,  is  to  make  our  appli- 
cation of  well  established  principles. 

The  right,  and  the  duty  of  this  Court,  to  give  judgment  on 
the  constitutional  power  of  the  Legislature  in  making  stat- 
utes, is  established  by  so  many  elaborated  opinions  of  this 
Court,  and  of  the  Supreme  Court  of  the  United  States,  and 
of  our  sister  States,  as  to  make  a  further  discussion  or  citation 
of  authorities  a  useless  attempt  at  a  display  of  learning ;  so  w^e 
assume  that  question  to  be  settled. 

Our  opinion  is,  that  the  statute  under  consideration,  so  far 
as  it  opposes  the  right  of  the  plaintiff  to  a  judgment  in  the 
Court  below,  or  the  motions  for  a  judgment  in  this  Court  and 
for  execution,  is  void  and  of  no  eff'ect,  because  it  is  in  viola- 
tion of  the  Constitution  of  the  United  States,  and  of  the  Con- 
stitution of  the  Confederate  States,  which,  in  this  respect,  is 
the  same,  and,  also,  of  the  Constitution  of  this  State. 

1st.  It  is  patent,  by  the  face  of  the  statute,  that  it  does 
"  impair  the  obligation  of  contracts."  This  is  settled.  Jones 
V.  Crittenderi^  1  Car.  Law  Hep.,  385.  In  that  case,  the  argu- 
ment is  exhausted,  and  we  only  add  "  we  concur  in  it" 


IN  THE  SUPKEME  COUKT. 


Barnes  v.  Barnes. 


It  is  suggested  that  this  ease  is  distinguishable,  on  the  gronnd, 
that  when  the  statute  in  question  was  passed,  the  country  was 
in  a  state  of  established  revolution,  or  in  a  state  of  "  contem- 
plated revolution,"  in  reference  to  which  the  Legislature  act- 
ed, which  revolution  has  been  carried  out  and  consummated 
by  a  subsequent  ordinance  of  the  Convention,  by  force  of 
which  all  acts  done  in  reference  to,  and  in  anticpation  of,  the 
revolution,  are  ratified  and  confirmed  as  incidents  thereto. 

This  proposition,  however  much  weight  it  may  be  entitled 
to  in  a  political  forum,  cannot,  by  reason  of  its  generality,  be 
appreciated  by  a  legal  tribunal,  and  a  mind  accustomed  to  the 
investigation  of  questions  of  law,  "  grasps  at  it,  as  at  a  shad- 
ow." But  to  avoid  a  complication  of  our  question,  we  pass 
over  the  legal  difficult^'^  of  the  maxim  "that  which  is  void 
cannot  be  confirmed,"  and  let  it  be  admitted,  that  on  the  20th 
of  May,  when  the  ordinance  of  the  Convention,  by  which  this 
State  was  withdrawn  from  the  government  of  the  United 
States,  went  into  effect,  the  statute  under  consideration  was 
in  full  force  and  eflect,  so  far  as  restrictions  by  the  Constitu- 
tion of  the  United  States  were  concerned,  in  the  same  man- 
ner and  to  the  same  extent  as  if  the  State  of  ISTorth  Carolina 
had  never  been  a  member  of,  or  in  any  way  connected  with 
the  Government  of  the  United  States,  so  as  to  bring  up  the 
naked  question,  what  was  the  legal  effect  of  the  ordinance 
adopting  the  Constitution  of  the  provisional  government  of 
the  Confederate  States,  made  on  the  same  da}^,  but  some  few 
hours  after,  the  ordinance  above  referred  to.  The  ordinance 
afterwards  passed  by  which  the  permanent  Constitution  was 
adopted.  Here  was  a  period,  say  of  seven  hours,  during  all  of 
which  time,  the  State  of  Korth  Carolina,  in  reference  to  her 
connection,  either  with  the  United  States,  or  with  the  Confed- 
erate States,  was  absolutely  sovereign,  and  the  statute  in 
question,  by  the  admission  made  for  the  sake  of  argument, 
was  in  full  force  and  effect.  Is  it  not  clear  to  the  certainty  of 
a  demonstration,  that  the  effect  of  the  ordinance  adopting  the 
Constitution  of  the  Confederate  States,  which  in  express  words 
provides  "  l^o  State  shall  pass  any  law  impairing  the  obliga- 


JUNE  TEEM,  1861.  371 

Barnes  v.  Barnes. 

tion  of  contracts,"  was  to  abrogate  or  make  void  and  of  no  ef- 
fect, this  short-lived  statute,  on  the  ground  that  it  was  incon- 
sistent with,  and  in  violation  of  the  Constitution,  then  adopt- 
ed? 

The  position  that  the  words  of  the  Constitution  are,  "  No 
State  shall  pass  any  law,"  using  the  word  in  the  future  tense, 
therefore,  any  law  which  had  already  passed,  although  it  im- 
paired the  obligation  of  contracts,  was  to  be  allowed  to  con- 
tinue in  operation,  is  a  play  upon  words,  and  is  not  worthy  of 
the  gravity  of  the  subject. 

The  evil  which  the  Constitution  intended  to  guard  against, 
at  present,  was  not  the  act  of  jMssing  the  law,  hut  the  effect 
incident  to  the  operatiojis  of  such  a  law,  and  in  respect  to  this, 
whether  it  was  passed  before  or  after  the  adoption  of  the  Con- 
stitution was  immaterial.  In  illustration,  suppose  during  its 
unfettered  existence  of  seven  hours,  the  State  had  passed  a  law 
making  tobacco  a  legal  tender  in  the  payment  of  debts.  Af- 
ter the  adoption  of  the  Constitution  of  the  Confederate  States, 
would  tobacco  have  still  continued  to  be  a  legal  tender?  most 
assuredly  not,  for  the  time  of  the  passage  of  the  law  was  imma- 
terial. If  all  laws  either  opposed  to  the  express  provisions  of 
the  Constitution  then  adopted  were  to  continue  in  operation 
because  they  had  been  passed  beforehand — all  of  the  acts  of 
the  General  Assembly  should  have  been  subjected  to  rigorous 
scrutiny  before  the  State  was  admitted  into  the  Confederacy. 

It  is  a  well  illustrated  principle  of  constitutional  law,  that 
upon  the  adoption  of  a  new  constitution,  or  an  amendment  of 
the  constitution,  any  and  all  laws  previously  existing,  are  ipso 
facto  annulled,  and  become  void  so  far  as  they  are  opposed  to 
and  conflict  with  the  new  or  amended  constitution — on  the 
same  reason  that  the  statute  repeals  all  statutes  previously  en- 
acted inconsistent  Math  its  provisions,  and  a  will  revokes  all 
former  wills — or  an  order  from  head  quarters  countermands 
one  previously  given,  so  far  as  it  conflicts  with  its  meaning 
and  intention  and  obvious  policy. 

2.  But,  apart  from  the  constitution  of  the  Confederate  States, 


372  IN"  THE  SUPKEME  COURT. 


Barnes  v.  Barnes. 


we  are  of  opinion  that  the  statute  is  in  plain  violation  of  the 
constitution  of  the  State,  on  two  grounds. 

1.  "  The  declaration  of  rights  "  fixes  the  principles  of  free 
government,  by  affirming  in  section  12,  "  no  free  man  ought 
to  be  deprived  of  his  life,  liberty  or  property,  but  by  the  law 
of  the  land." 

It  is  settled  that,  by  force  of  this  section,  the  Legislatui-e 
has  not  the  power  to  deprive  A  of  his  horse  and  give  it  to  B, 
or  to  deprive  E  of  his  office  and  give  it  to  C,  or  D  of  his  debt 
and  give  it  to  F — in  other  words,  the  Legislature  cannot  de- 
prive a  citizen  of  his  vested  rights  of  property.  See  Iloke  v. 
Henderson^^  Dev.  l,and  the  cases  there  cited.  So,  the  ques- 
tion is,  can  the  Legislature  deprive  a  citizen  of  his  debt,  which 
is  a  vested  right,  and  a  part  of  his  estate  or  property,  in  the 
broad  sense  in  which  the  word  is  used  in  the  section  above 
cited,  including  all  rights  of  person  and  rights  of  propertj^ 
either  by  conferring  the  right  on  a  third  person,  or  by  re- 
leasing it  to  the  debtor,  or  by  taking  from  the  creditor  the 
right  to  have  a  judgment  and  execution  for  his  debt  accord- 
ing to  the  course  of  the  courts.  Manifestlj'',  if  a  creditor  is 
deprived  of  his  right  to  have  judgment  and  execution  for  his 
debt,  he  is  thereby  deprived  of  the  right  to  his  debt,  which 
consists  in  his  right  to  enforce  payment,  and  the  ground  of 
hope  that  this  deprivation  is  not  to  be  absolute  and  perpetual, 
but  only  "  until  otherwise  provided  by  law,"  which  is  held 
out  by  the  wording  of  the  statute,  does  not  at  all  vary  the 
question  of  power,  because  the  power  to  deprive  one  of 
his  debt  for  an  indefinite  time  is  the  same  as  the  power 
to  deprive  him  of  it  absolutely,  and  so  far  as  the  creditor  is 
concerned,  it  makes  no  diff'erence  whether  the  debt  be  given 
to  a  third  person  or  be  released  to  the  debtor;  the  violation  of 
the  rights  of  the  creditor  is  the  same,  and  the  power  that  can 
do  the  one  can  do  the  other. 

2d.  The  statute  is  unconstitutional,  because  it  violates  the 
■ith  section  of  the  "declaration  of  rights."  "The  legislative, 
executive  and  suiyveme  judicial  ■powers  of  government  ought  to 
be  forever  separate  and  distinct  from  each  other." 


JUNE  TEUM,  1861.  373 


Bsrnes  v.  Barnes. 


Suppose  the  Legislature  should  pass  a  statute  that  the  Gov- 
ernor, in  the  recess  of  the  General  Assembly,  shall  not  em- 
body the  militia  of  the  county  of  Rowan,  or  shall  not  embo- 
dy the  militia  of  the  State,  or  shall  not  do  any  act  of  his  of- 
fice, would  "  the  legislative  and  executive  powers  of  the  gov- 
ernment be  kept  separate  and  distinct  from  each  other?"  Or 
suppose  the  Legislature  should  pass  a  statute,  that  the  Su- 
preme Court  shall  not  give  judgment  and  issue  execution  in  the 
case  of  Barnes  v.  Barnes,  or  shall  not  give  judgment  and  is- 
sue execution  in  any  actions  for  debts  due  on  bonds,  promis- 
sory notes,  &c.,  where  in  the  trial  of  the  case,  in  the  court  be- 
low, the  intervention  of  a  jury  M-as  required,  or  sliall  not  give 
judgment  and  issue  executions  in  any  suit  or  action,  founded 
either  on  contract  or  tort,  brought  before  it  by  appeal  from 
the  superior  court,  would  the  legislative  and  supreme  judi- 
cial powers  of  government  be  kept  separate  and  distinct  ?  In 
otlier  words,  would  not  the  assertion  and  exercise  of  thispow- 
on  the  part  of  tlio  Legislature  destroy  the  independence  of 
the  executive  and  supreme  judicial  powers  of  the  government, 
and  subvert  the  government  established  by  the  constitution, 
by  centering  all  powers  in  the  Legislative  department,  and 
and  making  a  despotism,  instead  of  a  free  government  where 
the  powers  are  divided  and  given  to  separate  departments, 
each  acting  in  its  appropriate  sphere,  as  a  check  on  the  other? 

Such,  it  seems  to  us,  would  be  the  result  of  the  concession 
of  the  power  assumed  by  the  Legislature  in  the  passage  of  the 
statute  under  consideration. 

The  result  is  not  avoided  b}^  the  fact  that  the  restraint  on 
the  courts,  is  coniined,  by  the  statute,  to  actions  for  debts  and 
matters  of  contract,  and  that  it  is  not  absolute,  but  mere- 
ly "  until  otherwise  provided  by  law  " — for  it  is  a  question  of 
povver.  If  the  Legislature  has  the  power  to  impose  this  re- 
straint on  the  courts  until  otherwise  provided  by  law,  it  has 
the  power  to  do  so  without  the  provision  to  remove  the  re- 
straint when  we  have  better  times  and  it  shall  be  easier  for 
men  to  pay  their  debts;  and,  if  it  has  the  power  to  impose 
this  restraint  on  the  courts,  in  respect  to  matters  of  contract, 


374  m  THE  SUPREME  COURT. 

Barnes  v.  Barnes. 

it  has  the  power  to  extend  it  to  matters  of  tort,  and  then  a 
man  who  is  stronger  than  I,  may  take  away  my  negro  or  my 
horse,  or  drive  me  out  of  my  house,  and  the  laws  of  my  coun- 
try will  give  me  no  redress,  because  the  temple  of  justice  is 
closed.  A  power  to  suspend  or  to  abolish  the  administration 
of  justice,  cannot  exist  in  a  free  government.  "Without  law 
and  tribunals  to  administer  it,  there  can  be  no  government;  it 
is  anarchy,  which  is  worse  than  despotism  ;  and  yet  the  power 
involved  in  the  passage  of  the  statute  necessarily,  and  by  logi- 
cal deduction,  leads  to  that  result. 

If  there  be  such  a  power  in  the  Legislature,  we  are,  with 
all  our  boasted  free  institutions,  infinitely  behind  the  mon- 
archy of  England  in  respect  to  the  protection  of  our  rights 
of  person  and  rights  of  property.  Blackstone,  the  learned 
commentator  on  the  constitution  and  laws  of  England,  in 
vol.  1st,  page  102,  says,  "  a  third  subordinate  right  of  every 
Englishman  is  that  of  applying  to  the  courts  of  justice  for  there- 
dress  of  injuries.  Since  the  law  in  England  is  the  supreme  ar- 
biter of  every  man's  life,  liberty  and  property,  courts  of  justice 
must,  at  all  times,  be  open  to  the  subject  and  the  law  be  duly 
administered  therein.  The  emphatic  words  of  Magna  Charta, 
are  these,  "  nulli  negabi7nus  aut  differemus  rectum  vel  justi- 
tiam,  and  therefore  every  subject  for  injury  done  to  him,  in 
terris,  in  honis,  vel perso7ia,  by  nnj  other  subject,  be  he  eccle- 
siastical or  temporal,  without  any  exception,  may  take  his 
remedy  by  the  course  of  the  law  and  have  justice  and  right 
for  the  injury  done  to  him,  fully  without  sale,  freely  without 
any  denial  and  speedily  without  delay." 

Upon  the  whole,  we  are  satisfied  that  without  reference  to 
the  Constitution  of  the  United  States,  or  to  that  of  the  Con- 
federate States,  our  State  Constitution  gives  ample  protection 
to  its  citizens  against  all  encroachments  on  the  part  of  the 
Legislature  upon  the  rights  of  property,  and  the  reason  why 
such  prominence  has  been  given  to  that  clause  of  the  Consti- 
tution of  the  United  States,  which  prohibits  laws  impairing 
the  obligation  of  contracts,  is,  that  the  courts  found  there  a 
provision  expressed  in  direct  and  positive  terms,  upon  which 


JUNE  TEEM,  1861.  375 


Gardner  v.  EHutts. 


it  was  more  convenient  to  put  their  decision,  than  it  was  to 
refer  to  fundamental  principles  embraced  in  the  Constitution 
of  the  several  States  although  not  expressed  in  words  so  direct 
and  positive  ;  for,  in  truth,  no  government  can  be  free,  unless 
the  Constitution  provides  for  the  protection  of  property,  the 
due  administration  of  the  law  and  the  independence  of  "  the 
supreme  judicial  department."  Let  the  several  motions  for 
judgment  and  executions  be  allowed. 

Pee  Curiam,  Judgment  affirmed. 


Doe  on  the  Demise  of  JOHN  GARDNER  et  al  v.  JAMES  KLUTTS. 

The  declarations  of  a  woman  made  shortly  after  the  birth  of  a  child,  that  it 
bad  been  born  alive,  are  not  competent  to  prove  her  husband's  title  to  an 
estate  by  the  curtesy. 

This  was  an  action  of  ejectment,  tried  before  Osborne,  J., 
at  the  Spring  Term,  18G0,  of  Rowan  Superior  Court. 

Tlie  lessors  of  the  plaintiff  were  admitted  to  be  the  heirs-at- 

iaw  of Klutts,  lately  the  wife  of  the  defendant,  James 

Klutts,  the  defendant,  who  claimed  as  tenant  by  the  curtesy.  To 
establish  his  title,  the  defendant  proved  by  a  witness  that  she 
was  called  in  as  a  midwife  to  Mrs.  Klutts  on  her  confinement ; 
that  when  she  arrived,  she  found  that  the  woman  had  been 
delivered  of  a  child,  which  was  then  dead.  The  defendant 
offered  to  prove  by  this  witness  the  declarations  of  the  moth- 
er, to  the  cflect,  that  the  child  had  been  born  alive — that  it 
had  cried  and  survived  its  birth  a  few  minutes  ;  and  that  the 
conversation  occurred  shortly  after  the  birth  of  the  child. 
The  evidence  was  objected  to  and  excluded  by  his  Honor, 
and  the  defendant's  counsel  excepted. 

Verdict  and  j  udgment  for  plaintiffs.     Appeal  by  defendant. 


376  '  IN  THE  SlJ^RfellE  COURT. 

Gardner  v.  Klutts. 

Fleming  and  Kerr,  for  the  plaintiffs.  "  R 

Boy  den  and  B.  B.  Moore^  for  the  defendant.  "^ 

Pearson,  C.  J.  A  wife  is  not  a  competent  witness  for,  or 
against,  her  husband ;  State  v.  Jolly,  3  Dev.  and  Bat.  110. 
It  follows  that  her  declarations  cannot  be  evidence  for  or 
against  him  ;  otherwise  more  weight  is  given  to  what  she 
says,  when  not  on  oath,  than  to  what  she  would  say  on  oath  ; 
which  is  absurd. 

The  declarations,  in  this  case,  were  made  shortly  after  the 
birth  of  the  child  and,  we  will  suppose,  as  soon  as  the  mid- 
wife arrived,  at  which  time  the  act  of  delivery  was  over — "  a 
fact  accomplished."  So,  whether  the  child  was  born  alive  or 
dead,  could  in  no  wise  affect  or  have  any  bearing  upon  that 
fact.  The  suggestion,  therefore,  that  this  declaration  of  the 
wife  was  admissible  as  a  part  of  the  res  gestcB,  is  not  supported. 

The  position  that  the  declarations  of  the  mother,  in  respect 
to  her  child,  "  is  natural  evidence,"  and  admissible  on  that 
ground,  is  also  untenable. 

This  kind  of  evidence  is  not  based  upon  the  competency  of 
the  witness,  for  it  is  the  evidence  of  facts,  as  distinguishable 
from  the  testimony  of  witnesses,  as  is  said  in  Biles  v.  Holmes, 
11  Ire.  16.  "  The  actions,  looks  and  barking  of  a  dog  are  ad- 
missible as  natural  evidence  upon  the  question  as  to  his  mad- 
ness ;  so  the  squealing  and  grunting,  or  other  expressions  of 
pain  made  by  a  hog,  are  admissible  upon  a  question  as  to  the 
extent  of  an  injury  inflicted  on  him.  This  can,  in  no  sense, 
be  called  the  testimony  of  a  hog  or  dog,"  so  the  declarations 
and  looks  of  a  slave  are  admissible  upon  a  question  as  to  the 
condition  of  his  health ;  Boulhac  v.  White,  9  Ire.  63  ;  Wal- 
lace V.  Mcintosh,  4  Jones  434.  But  the  declaration  offered 
as  evidence  in  this  case,  clearly,  does  not  fall  within  the  prin- 
ciple of  natural  evidence.  Instantly  after  the  delivery  the 
existence  and  presumed  individuality  of  the  child  was  distinct 
from,  and  had  no  further  connection  with  the  mother.  So, 
although  expressions  of  pain  and  declarations  showing  her 
ovin  hodily  condition  on  the  part  of  the  wife,  would  have  been 


JUNE  TEEM,  1861.  377 

Winchester  v.  Raid. 

admissible,  if  material  to  the  issue,  yet,  what  she  said  in  regard 
to  the  condition  of  the  child  was  collateral,  and  had  no  na- 
tural guaranty  of  truth.  It  may  have  been  the  voluntary  ex- 
pressions of  a  mother's  grief;  but,  on  the  other  hand,  the  dec- 
laration may  have  been  made  under  the  influence  of  her  hus- 
band, whose  estate,  as  tenant  by  the  curtesy,  depended  on  the 
fact  of  the  child's  having  been  born  alive.     There  is  no  error. 

Per  Curiam,  Judgment  affirmed. 


Doe  on  the  demise  of  THOJ^IAS  D.  WINCHESTER  v.  DAVID  N.  REID. 

Where  a  father,  who  was  largely  indebted  and  insolvent,  made  a  deed  for  his 
land  to  his  son,  who  was  under  age  and  received  from  him  money,  which 
he  had  earned  as  day  wages,  in  part  payment,  and  his  note  for  the  remain- 
der of  the  price,  such  deed  was  held  to  be  voluntary  and  void  as  against 
creditors. 

This  was  an  action  of  ejectment,  tried  before  French,  J., 
at  the  last  Spring  Term  of  Union  Superior  Court. 

The  plaintifl''8  lessor  claimed  title  under  a  purchase  at 
sheriff's  sale,  made  in  1843,  by  virtue  of  judgments  and  exe- 
cutions against  Robert  Porter,  in  favor  of  H.  M.  Houston  and 
others,  creditors  of  the  said  Robert. 

The  defendant  claimed  title  to  the  premises,  in  controversy, 
under  a  deed,  made  by  Robert  Porter,  dated  25th  of  October, 
1842,  to  Hugh  Porter,  who  conveyed  to  David  Moore,  and 
he  to  his  daughter,  Clarinda,  the  wife  of  the  defendant,  Reid. 

John  N.  Porter,  a  witness  for  the  defendant,  testified  that 
he  was  the  son  of  Robert  Porter  and  the  brother  of  Hugh 
Porter,  another  son  of  the  said  Robert ;  that  at  the  time  the  said 
deed  was  made  by  Robert  Porter  to  Plugh  Porter,  the  latter  was 
over  twenty  years  of  age,  but  under  21 ;  that  he  (Hugh)  paid  his 
father  $250  in  money,  and  gave  his  note  for  $50,  the  residue 
of  the  purchase-money  ;  that  the  said  Hugh,  prior  to  the  exe- 


37a  IN  THE  SUPREME  COURT. 

Winchester  v.  Eeid. 

cution  of  this  deed,  had  worked  at  a  gold  mine  for  some  two 
or  three  years  at  from  seventy-five  cents  to  a  dollar  per  day, 
and  that  he  had  no  property  other  than  these  earnings  ;  that 
after  the  deed  was  made,  it  was  agreed  between  Hugh  and 
his  father,  that  the  latter,  with  his  wife,  might  live  with  Hugh 
on  the  premises,  until  he  (Robert)  could  get  a  place  for  him- 
self, or  until  Hugh  might  sell  the  land ;  that  Hugh  took  im- 
mediate possession  and  worked  the  land  for  four  years,  his 
father  and  mother  living  with  him,  at  the  end  of  which  time, 
he  sold  to  Moore.  This  witness  gave  it  as  his  opinion  that 
the  land  was  not  worth  more  than  $300.  Another  witness 
stated  that  the  land  was  worth  $400. 

It  was  in  evidence,  that  the  debt  to  Houston,  who  was 
the  plaintiff  in  one  of  the  executions,  under  whicli  the  land 
was  sold,  was  in  existence  at  the  time  the  deed  to  Hugh  bears 
date,  (October,  1842,)  and  that  independently  of  the  land  in 
question,  the  said  Robert  was  insolvent. 

The  counsel  for  the  plaintifi"  contended,  that  the  facts  of  the 
relation  of  the  parties,  the  minority  of  the  son,  that  only  $250 
"vfas  paid  for  land  worth  between  $300  and  $400,  the  note  for 
$50  having  no  validity,  the  possession  of  the  land  by  the  debt- 
or after  the  sale  and  his  insolvenc}'',  rendered  the  deed  frau- 
dulent and  void,  and  asked  the  Court  so  to  instruct  the  jury. 

The  Court  instructed  the  jury,  that  if  John  N.  Porter  was 
not  believed,  there  was  a  presumption  of  fraud,  and  this  fraud 
was  not  rebutted,  so  that  the  plaintiff  would  be  entitled  to  a 
verdict ;  that  if  John  N.  Porter  was  believed,  the  estate  of 
Robert  Porter,  in  the  land,  passed  by  the  deed,  unless  they 
were  satisfied,  from  the  evidence,  that  there  was  fraud ;  of 
which,  in  that  event,  they  v^ere  the  sole  judges.  Defendant's 
counsel  excepted. 

Ycrdict  and  judgment  for  the  defendant,  and  appeal  by  the 
plaintiff. 

Wilson,  for  the  plaintiff. 
No  counsel  appewed  for  the  defendant  in  this  Court. 


JUNE  TERM,  1861.  379 

Winchester  v.  Reid. 

Peakson,  C.  J.  "What  amounts  to  fraud  is  a  question  of 
law.  His  Honor  erred  in  declining  to  explain  to  the  jury 
what  is  considered,  in  law,  such  a  fraud  as  makes  a  deed  void 
against  creditors,  and  in  telling  them,  on  the  contrary,  that 
"  if  John  K.  Porter  was  believed,  the  deed  was  valid,  unless 
they  were  satisfied  that  there  M'as  fraud  ;  of  which,  in  that 
event,  they  were  the  sole  judges,^^  which  was  saying,  in  effect, 
that  if  John  l!^.  Porter  was  believed,  they  should  find  for  the 
defendant. 

A  father  is  entitled  to  the  services  of  his  child  until  he  ar- 
rives at  the  age  of  twenty-one  ;  Musgrove  v.  Kornegay,  7 
Jones  71.  It  is  true,  a  creditor  cannot  make  his  debtor  work 
in  order  to  pay  the  debt,  nor  can  he  force  him  to  make  his 
children  work,  or  sell,  under  execution,  the  valuable  interest 
which  a  father  has  in  the  services  of  his  child,  or  which  a  mas- 
ter has  in  the  services  of  an  apprentice.  But  if,  in  fact,  a 
child  does  work  and  earn  wages,  the  proceeds  of  his  labor  be- 
long to  his  father,  and  if  the  father  invests  the  money  so  earn- 
ed, in  the  purchase  of  land,  taking  the  title  in  the  name  of 
the  child,  the  father  being  insolvent,  his  creditors  can  subject 
the  land  to  the  payment  of  their  debts  ;  Worth  v.  York,  13 
Ire.  206.  Therefore,  when  Hugh  Porter  worked  at  the  gold 
mine,  his  wages  belonged  to  his  father,  and  he  was  bound,  as 
an  honest  man,  to  have  taken  the  money  and  applied  it  to  the 
payment  of  his  debts  instead  of  attempting,  under  the  color  of 
this  money,  which  was  his  own,  to  pass  his  land  into  the  hands 
of  his  son  ;  so  as  to  secure  a  home  for  himself  and  wife,  and 
put  the  land  out  of  reach  of  his  creditors.  A  father,  who  is 
not  in  debt,  or  who  retains  property  "  amply  sufficient  to  pay 
his  debts,"  may  give  his  child  the  proceeds  of  his  labor  before 
he  is  twenty-one  years  of  age.  So,  he  may  give  him  money 
or  land.  But  if  the  father  be  insolvent,  that  alters  the  case, 
for  the  law  requires  men  "  to  be  just,  before  they  are  gener- 
ous." So  he  has  no  right  to  give  his  son  monej^,  although  his 
son  may  have  earned  it  as  day  wages,  and  if  he  pretends  to 
sell  him  land  for  this  money,  it  is,  in  legal  eflfect,  handing  to 
the  son  the  father's  own  money,  so  as  to  let  him  hand  it  back 


380  IN  THE  SUPEEME  COUET. 

Winchester  v.  Reid. 

again  in  the  presence  of  witnesses  as  the  consideration  of  the 
deed.  In  other  words,  the  deed  is  voluntary  and  void  against 
credHprs. 

So,  if  a  father,  who  is  about  to  fail,  conveys  property  to 
an  infant  child  and  takes  his  notes  for  the  consideration,  the 
conveyance  is  treated  as  voluntary  and  void  against  creditors; 
for  the  child  may  avoid  his  notes  and,  therefore,  in  legal  ef- 
fect, they  amount  to  nothing ;  Jlammond  v.  McCorhle^  2 
Jones  444. 

In  the  case  under  consideration,  the  defendant's  witness, 
John  N.  Porter,  proved  that  his  father  was  insolvent;  that 
his  brother,  Hugh,  was  under  age  and  had  no  property  ;  that 
he  had  worked  at  the  gold  mine  two  or  three  years  by  w^hich 
he  earned  seventy -five  cents  or  a  dollar  a  day,  and  handed  his 
father  $250  in  money  and  gave  his  note  for  $50,  the  residue  of 
the  price  agreed  on,  and  that  his  father  and  mother  continued 
to  live  on  the  land  with  him  until  he  sold  it. 

Upon  this  evidence,  we  think  the  plaintiff  was  entitled  to 
the  instructions  prayed  for  in  respect  ^o  the  question  of  fraud. 
Indeed,  his  Plonor  could  not  have  more  accurately  and  aptly 
conveyed  to  the  minds  of  the  jury  the  idea  of  what,  in  law, 
amounts  to  fraud  against  creditors,  than  by  telling  them  that 
the  evidence,  if  believed,  raised  a  presumption  of  fraud,  and 
there  being  no  evidence  to  rebut  this  presumption,  it  was 
their  duty  to  find  the  deed  fraudulent.  As  a  precedent  for  a 
charge  of  this  character,  several  recent,  as  well  as  older  cases, 
would  have  fully  sustained  him ;  e.  g.  Jessujp  v.  Johnson,  3 
Jones  335 ;  London  v.  Parsley,  7  Jones  313,  in  which  cases, 
this  direct  and  pointed  mode  of  instructing  a  jury  on  ques- 
tions of  fraud,  as  upon  a  demurrer  to  evidence,  is  approved 
and  recommended.    There  is  error.      Venire  de  novo. 

Pek  Curiam,  Judgment  reversed. 


JUKE  TERM,  1861.  381 


Cowles  V.  Carter. 


Doe  on  the  demise  of  JOSIAH   COWLES  v.  W.  H.  CARTER. 

The  act  of  1850,  chapter  14,  docs  not  authorise  a  defendant  in  ejectment, 
where  the  plaintifl'has  filed  an  aflidavit  that  such,  defendant  entered  as  his 
tenant,  to  plead  without  giving  security  for  costs  by  filing  an  aflldavit  that 
he  is  unable,  on  account  of  his  poverty,  to  do  so. 

Tins  was  an  action  of  e-tectment  pending  in  the  Superior 
Conrt  of  Yadkin,  before  French,  J.,  Spring  Term,  18G1. 

Tlie  action  ^vas  brought  in  the  County  Court.  The  decla- 
ration having  been  served  on  tlie  defendant.  Carter,  it  was 
returned  to  the  first  County  Court  thereafter,  whereupon  lie 
filed  an  affidavit  that  he  was  unable  to  give  security  for  the 
costs  of  tlie  suit  on  account  of  his  poverty,  and  filed  a  certifi- 
cate of  his  counsel  that,  in  their  opinion,  he  had  a  good  de- 
fense. Tlie  plaintiff,  at  the  same  time,  filed  an  affidavit,  stat- 
ing that  Carter  had  entered  as  his  tenant^  and  that  Iiis  tenan- 
cy had  expired  before  the  commencement  of  the  suit,  and 
moved  the  Court  to  require  the  defendant  to  file  a  bond  for 
the  costs  of  the  suit,  and  to  make  affidavit  that  his  tenancy 
had  not  expired,  before  being  allowed  to  plead,  which  motion 
was  refused,  and  the  defendant  allowed  to  plead,  Tlie  plain- 
tiff moved  the  Court  to  call  the  casual  ejector,  and  that  ho 
might  have  judgment  by  default.  This  motion  was  also  refus- 
ed, and  the  plaintiff  prayed  an  appeal,  which  was  granted. 
In  the  Superior  Court  the  same  motions  were  made  and  re- 
fused, and  the  appeal  from  the  Count}^  to  the  Superior  Court 
ordered  to  be  dismissed,  whereupon  the  plaintiff'  appealed  to 
this  Court. 

Clement,  for  the  plaintiff'. 

Ko  counsel  appeared  for  the  defendant  in  this  Court. 

Manly,  J.  AYe  do  not  concur  with  the  Court  below  in  its 
interpretation  of  the  statute  of  1856,  chapter  11.     Instead  of 

5 


382  m  THE  SUPEEME  COUKT. 

Cowles  V.  Carter. 

of  taking  away  any  security  for  the  rights  of  plaintiffs,  it 
adds  another  to  those  then  existing — or  rather,  it  extends  a 
part  of  the  provision  made  for  a  class  of  ejectment  cases  in 
Rev.  Code,  chap.  31,  sec.  48,  to  the  action  generally. 

It  is  an  nnnsual  provision  of  om-  law  to  require  defendants 
to  give  security  for  costs.  Plaintiffs  are  only  so  required. 
When,  therefore,  the  Legislature  concluded  to  put  defendants 
in  ejectment  upon  the  same  footing  with  plaintiffs,  in  this  re- 
spect, it  was  but  fair  and  proper  they  should  be  equalised  in 
other  respects,  and  be  allowed,  in  case  of  poverty,  to  defend 
without  giving  security.  This  is  all,  as  we  suppose,  that  was 
intended  by  the  act  of  1856.  It  was  to  provide  security  for 
costs  from  defendants,  in  ordinary  cases  of  ejectment,  and  not 
to  interfere  with  the  legislation  in  respect  to  such  actions, 
when  between  landlord  and  tenant.  It  is  hardly  possible  to 
suppose,  if  so  material  an  interference  had  been  intended,  it 
would  have  been  left  by  the  Legislature  to  an  implication  un- 
certain in  its  nature. 

If  the  statute  of  1856,  had  simply  required  defendants  in 
ejectment  to  secure  costs,  without  adding  the  proviso  in  favor 
of  poor  persona,  it  would  not  have  touched  the  48th  section  of 
the  Rev.  Code,  chapter  31,  and,  the  right  of  the  landlord  to 
require  a  bond  for  damages,  as  well  as  costs,  would  have  re- 
mained. This  would  be  because  of  a  manifest  intention  to 
legislate,  in  the  last  enactment,  for  a  class  of  cases  not  provi- 
ded for  in  the  former.  It  follows,  if  that  restricted  applica- 
tion of  the  statute  of  1856,  would  have  been  made,  had  it  been 
left  without  the  proviso,  the  proviso,  itself,  must  also  be  un- 
derstood in  the  same  limited  sense,  and  held  to  apply  to  ordi- 
nary cases  of  ejectment,  and  not  to  the  action  between  landlord 
and  tenant. 

This  Court  being  of  opinion,  then,  that  the  statute  of  1856, 
does  not  apply  to  actions  of  ejectment  between  landlord  and 
tenant,  holds,  consequently,  it  was  erroneous  in  the  Court  be- 
low to  allow  the  defendant  to  plead  without  the  affidavit  and 
bond  required  by  the  Revised  Code,  chap.  31,  sec.  48. 

Wherefore,  let  this  opinion  be  certified  to  the  Court  below, 


JUNE  TEKM,  1861.  383 


McLean  v.  McDu^ald. 


to  the  end  that  its  judgment  may  be  reversed,  and  proceed- 
ings had  therein  according  to  law. 

Per  Curiam,  Judgment  reversed* 


HUGH  McLEAN  v.  NEILL  McDUGALD,  AdmV 

It  is  no  objection  to  tlie  endorsement  of  a  bond,  that  the  presumption  of  pay- 
ment from  the  lapse  of  time,  was  applicable  to  it,  when  the  endorsement 
was  made. 

An  assignment,  without  consideration,  passes  the  title,  and  where  such  as- 
signment was  made  to  evade  the  la\v  regulating  the  venues  of  actions,  t^c 
objection,  to  be  good,  must  be  taken  by  plea  in  abatement. 

This  was  an  action  of  debt,  on  a  bond  tried  before  Saun- 
dp;ks,  J.,  at  the  last  Spring  Term  of  Harnett  Superior  Court. 

The  pleas  were  non  est  factum,  payment  and  no  assign- 
ment. 

The  following  case  agreed,  sets  out  tlie  facts : 

The  note  on  which  the  action  was  brought,  purported  to 
have  been  executed  by  the  defendant's  intestate  more  than 
ten  years  before  the  suit  was  brought.  After  ten  years  from 
the  execution  of  the  note  elapsed,  it  was  assigned  by  the  payee 
therein  b}^  endorsement,  and  transmitted  to  the  endorsee  by 
the  hands  of  a  third  person  ;  the  endorsee  then  assigned  the 
note  to  plaintiff  by  endorsement  and  delivery,  and  the  suit 
was  then  commenced. 

The  plaintiff  proved  the  execution  of  the  note,  and  that  it 
had  not  been  paid.  The  assignment  to  the  first  endorsee  was 
made  without  consideration,  and  in  order  to  enable  the  plain- 
tiff to  sue  in  Harnett  county,  the  defendant  residing  in  Cum- 
berland. It  was  agreed  tliat  if  the  foregoing  facts  amounted 
to  a  transfer  to  the  plaintiff  of  the  legal  interest  in  the  note, 
there  should  be  a  judgment  in  favor  of  the  plaintiff  for  $800, 


384  m  THE  SUPEEME  COUET. 

McLean  v.  McDngald. 

of  which  sum  $285  is  principal.  Otherwise,  there  should  be 
judgment  for  the  defendant.  The  Court  gave  judgment  for 
the  plaintiff,  and  the  defendant  appealed, 

JV.  McKay,  for  the  plaintiff. 
Phillips,  for  the  defendant. 

Manly,  J.  We  concur  with  his  Honor  below  in  his  opin- 
ion upon  the  case  agreed.  The  objection  to  the  validity  of 
the  assignment,  seems  to  be  two-fold  :  First,  because  of  the 
presumption  of  payment  which  attached  to  it,  when  assigned. 
8eco7idly,  because  of  the  purpose  thereby  to  evade  the  opera- 
tion of  law  as  to  jurisdiction.     Neither  ground  is  tenable. 

1.  The  lapse  of  time  is  not  a  nullification  of  the  bond,  as 
cancellation  would  be,  but  is  only  presumptive  evidence  of 
payment.  The  statute  of  presumption  is  of  no  greater  force 
or  effect  than  a  receipt  upon  the  paper  would  be.  In  both 
casss,  the  fact  of  payment  being  ])rima  facie  only,  and  ques- 
tionable, an  endorsee  would  take  title  subject  to  the  enquirers 
of  fact. 

2.  The  endorsement  being  good  to  pass  the  title,  and  only 
invalid  to  give  a  fraudulent  venue  to  the  action,  it  will  follow 
that  the  second  ground  of  objection  is  to  the  legality  of  the 
venue.  This  must  be  taken  advantage  of  by  plea  in  abate- 
ment, Eev.  Code,  ch.  31.  sec.  37.  An  endorsement  without 
consideration  is  effective  to  pass  title ,  simply.  Upon  the  sup- 
position that  the  purpose  to  evade  the  law  regulating  the  ven- 
ue of  actions  is  unlawfid,  the  endorsement  would  be  invalid 
for  such  purpose,  and  the  right  of  venue  would,  consequently, 
remain  unchanged. 

If  the  action  had  been  brought  in  the  county  of  Cumber- 
land where  the  defendant  resides,  it  might  have  been  brought, 
we  take  it,  in  the  name  of  the  endorsee,  and,  if  so,  it  is  a  test 
which  shows  that  the  principle  of  the  ground  is  the  illegality 
of  the  venue. 

Pee  Curiam,  Judgment  affirmed. 


JUNE  TERM,  1861.  335 


Hunter  v.  Anthony. 


JAMES  T.  HUNTER  v.  WILLIAM  ANTHONY. 

Where  an  instrument  is  susceptible  of  two  constructions,  by  one  of  whicli  it 
will  take  eflect,  and  by  the  other,  it  will  be  inoperative  for  the  want  of  a  sub- 
ject-matter to  act  on,  it  shall  receive  that  construction  by  which  it  will  take 
effect;  for  it  cannot  be  supposed  that  the  parties  intended  to  do  a  nugato- 
ry act. 

Assumpsit,  tried  before  Howard,  J.,  at  the  last  Spring  Term 
of  Orange  Superior  Court. 

The  plaintilt'  declared  on  the  following  order,  in  writing, 
and  the  acceptance  thereon,  to  wit : 

"Mr.  William  AnthonjM  Please  pay  to  James  T.  Hunter, 
constable,  all  the  executions  in  his  hands  for  collection  as  they 
come  due  against  me  and  brother;  this  March  ith,  1857. 

J.  W.  Holt." 

Endorsed  thereon  was  tlie  following:  "The  within  order 
this  day  excepted  by  William  Anthony,  March  4th,  1857." 

William  Anthony." 

The  plaintiff  then  offered,  in  evidence,  sundry  justices  judg- 
ments in  favor  of  divers  persons  against  J.  W,  Holt  and  Bro- 
ther, Sterling  W,  Holt,  rendered  upon  warrants,  which  had 
been  served  b}-  the  plaintiff',  as  constable,  and  also  showed 
that  executions  had  issued  on  the  same,  which  had  been 
stayed  by  the  parties,  and  that  the  papers  containing  these 
judgments,  executions,  and  stays  of  execution,  were  in  his 
hands,  at  the  date  of  the  order,  to  wit,  on  the  -Itli  of  March, 
1857.  The  aggregate  amount  of  these  papers,  in  the  hands  of 
the  plaintiff,  was  $725.85. 

The  defendant  objected  to  the  admission  of  these  papers, 
because,  as  he  insisted,  the}^  were  not  executions  at  the  date 
of  the  order  and  the  date  of  his  acceptance,  and  called  on  the 
Court  to  instruct  the  jury,  that  they  did  not  sustain  the  plain- 
tiff's cause  of  action. 


886  m  THE  SUPREME  COURT. 


Hunter  v.  Anthony. 


His  Honor  charged  the  jury,  tliat  if  they  believed  from  the 
evidence  that  the  judgments  and  exeentions,  issued  and  stayed 
as  above  stated,  were  in  the  hands  of  the  plaintiff  at  the  time 
the  order  was  given,  and  that  the  order  was  intended  to  apply  to 
them,  and  was  so  accepted  by  the  defendant,  they  should  Und 
for  the  plaintiff.     The  defendant's  counsel  excepted. 

Yerdict  and  judgment  for  plaintiff.     Appeal  by  defendant. 

Phillips  and  Norioood^  for  the  plaintiff. 
Graham,  for  the  defendant. 

Pearson,  C.  J.  The  papers  which  were  in  the  hands  of 
the  plaintiff,  can  be  made  to  fit  the  description  given  in  the 
acceptance  of  the  defendant  by  aid  of  the  maxim,  ^tt  res 
nnagis  ^Kileat  quam  ji;6'r<'«7!,  which  means  that  instruments 
should  be  liberally  construed,  so  as  to  give  them  effect  and 
carry  out  the  intention  of  the  parties,  and  when  an  instru- 
ment is  susceptible  of  two  constructions,  one  by  which  it  will 
take  effect,  and  the  other,  by  which  it  will  be  inoperative  for 
the  want  of  a  subject-matter  to  act  on,  it  sh^ll  receive  that 
construction,  which  will  give  it  effect.  This  rule  is  based  on 
the  presumption,  that  when  parties  make  an  instrument,  the 
intention  is,  that  it  shall  be  effectual,  and  not  nugatory. 

"  Executions  in  the  hands  of  an  officer,"  taken  literally, 
would  apply  to  process  in  his  hands,  which  was  then  in  a  con- 
dition to  be  acted  on,  and  would  not  lit  judgments  in  the  offi- 
eer's  hands,  on  which  execution  had  been  stayed  ;  but  by  aid  of 
the  words,  "  as  they  come  due,"  we  see  that  the  word,  "  exe- 
cutions" is  not  to  be  taken  literally,  for  the  pa])ers,  to  which 
refei'ence  was  made,  were  some  that  were  al)Out  to  Ijecoine  due 
at  different  thnes  /  and  taking  the  whole  description,  they  as 
aptly  point  out  judgments,  on  which  were  entered,  "execu- 
tions issued  and  stayed,"  as  any  other  terms  of  description 
that  could  have  been  used. 

The  suggestion  that  these  words  ought  to  be  considered 
surplusage,  has  nothing  to  support  it.  That  is  sometimes  done 
in  order  to  give  effect  to  an  instrument,  in  which  repugnant 


JUNE  TERM,  1861.  387 


Dowel  1  V.  Jacks. 

words  are  used,  but  is  never  applied  for  the  purpose  of  de- 
feating an  instrument.     There  is  no  error. 

Pee  Cueiam,  Judgment  aflBrmed. 


PRISCILLA  DOWELI<  v.  RTCHARD  JACKS,  et  al 

Where  a  writ  of  lunacy  was  issued  by  a  county  court,  and  a  trial  had  before 
a  jury,  and  a  verdict  rendered,  finding  the  subject  party  non  compos^  which 
was  confirmed  by  the  court  issuing  the  writ,  and  a  guardian  appointed,  all 
in  the  absence  of  the  said  party,  and  without  notice  to  such  party,  and  it 
appeared  that  the  party  immediately  applied  to  a  judge  for  a  certiorari, 
which  was  refused  on  an  erroneous  ground,  and  the  party  under  advice  of 
counsel  iostituted  a  suit  in  equity,  which  failed  for  the  want  of  jurisdiction, 
and  the  party  swears  to  merits,  it  was  held  on  a  petition  setting  forth  these 
matters,  that  the  petitioner  was  entitled  to  a  certiorari  to  have  the  case  ta- 
ken into  the  superior  court. 

This  was  a  petition  for  a  certiorxVri,  heard  before  FKEJsrcn, 
J.,  at  the  last  Spring  Term  of  Wilkes  Superior  Court, 

The  facts  of  the  case  are  stated  so  fully  in  the  opinion  of 
the  Court,  tliat  it  is  deemed  entirely  nnnecessar}^  to  set  them 
forth  in  this  connection. 

His  Honor,  in  the  Court  below,  decided  that  the  certiorari 
theretofore  issued  was  proper,  that  the  petitioner  was  entitled 
to  a  new  trial,  and  ordered  the  case  to  be  put  on  the  trial 
docket;  from  which  orders  the  defendauts  appealed. 

Barber  and  Mitchell ^  for  the  plaintiff. 
Boxjden^  for  the  defendants. 

Manly,  J.  We  are  at  a  loss  to  conceive  how  any  one,  hav- 
ing ordinary  respect  for  the  rights  of  others,  could  resist  the 
prayer  of  the  petitioner.     We  are  quite  sure  it  could  not  be 


388  IN  THE  SUPEEME  COURT. 


Dowell  V.  Jacks. 

done  by  any  one  having  the  compassionate  feelings  which 
should  characterise  a  kinsman  or  guardian,  for  the  person  of 
an  old,  feeble  and  distressed  woman. 

The  facts  of  the  case  appear  to  be  these :  At  the  July  ses- 
sions, 1859,  of  Wilkes  Countj^  Court,  upon  the  application  and 
petition  of  the  defendant,  Jacks,  an  inquisition  of  lunacy  was 
held  in  respect  to  the  petitioner,  and  she  was  declared,  at  that 
term,  to  be  non  comjyos  mentis.  This  was  done  in  the  absence 
of  petitioner,  without  notice  to  her  of  the  proceedings,  and 
without  any  opportunity  being  afforded  the  jury  to  examine 
her  personally,  touching  her  alleged  insanity". 

As  soon  as  she  had  information  of  this  transaction  in  the 
County  Court,  a  petition  was  laid  before  a  judicial  officer  of 
the  State  for  a  writ  of  certiorari.  This  writ  was  refused,  on 
the  ground  that  there  was  no  appeal,  and  no  right  to  a  certio- 
rari in  a  case  of  the  kind,  but  that  the  application  must  be 
made  to  the  Count_y  Court  for  another  inquisition,  whereby 
the  verdict  in  the  former  one  might  be  revel'sed,  or  to  a  court 
of  equit}^,  which  was  supposed  to  have  a  jurisdiction  in  such 
matters. 

A  suit  in  equity  was  accordingly  brought  to  the  Fall  Term, 
1859,  of  the  court  for  Wilkes,  and  after  remaining  there  un- 
til the  Spring  Term,  1860,  was  transferred  to  this  Court  at 
Morganton.  It  was  there  held  by  us  that  the  courts  of  equi- 
ty for  North  Carolina,  had  no  jurisdiction  in  cases  of  inquisi- 
tion of  lunacy  ;  5  Jones'  Eq.  417. 

This  petition  for  a  certiorari  was  then  preferred,  the  certio- 
rari ordered,  and  returned  into  Wilkes  Superior  Court  at  its 
Fall  Term,  and,  upon  a  hearing  in  that  court,  the  verdict  of 
the  jur}'-,  and  the  judgment  of  the  Court,  confirming  the  same, 
were  set  aside,  and  a  new  trial  granted,  and  the  case  ordered 
on  the  trial  docket.  The  appointment  of  guardian  was  also 
revoked,  and  a  supersedeas  ordered  to  issue  to  him.  From 
these  orders  the  defendant,  Jacks,  appealed. 

We  regard  as  of  no  importance,  connected  with  the  merits 
of  the  petitioner's  case,  that  attorneys  were  employed  by 
a  friend  to  attend,  in  her  behjuf,  to  the  inquisition  of  lunacy 


JUXE  TEJRM,  1861.  389 

Dowell  V.  Jacks. 

at  Jnlj  Term*,  1859.  She  had  no  notice — was  not  legally  re- 
presented, and,  what  is  of  still  greater  importance,  was  not 
present,  to  be  seen  and  examined  bj  the  jnry. 

The  question,  then,  is  whether  under  these  circumstances, 
she  is  entitled  to  a  certiorari,  and,  npon  the  merits  of  her  case, 
to  a  reversal  of  the  judgment  of  the  County  Court,  and  to  a 
new  trial.  We  are  clearly  of  opinion  she  is.  Although  at 
one  time,  the  matter  seems  to  have  been  regarded  as  doubt- 
ful, it  is  now  conceded  that  there  is  a  right  of  appeal  from  the 
county  court  to  the  superior  court  upon  the  inquisition  of  lu- 
nac}'.  A  certiorari  is  a  substitute  for  an  appeal  where  the 
right  of  appeal  has  been  lost  by  accident  or  fraud,  and  it  will 
be  entertained,  as  such,  in  all  cases  where  the  complaining- 
party  has,  by  the  contrivance,  or  culpable  inaction  of  the  oth- 
er, been  deprived  of  the  opportunity  to  appeal — where  the 
complainant  shows  probable  merits,  and  has  been  guilty  of 
no  unreasonable  delay  in  preferring  his  petition. 

The  petitioner's  case,  tested  by  all  these  requisites,  is  a  prop- 
er one  for  relief.  We  have  already  noticed  her  absence,  and 
want  of  notice,  as  a  sufficient  excuse  for  not  appealing.  This 
was  by  the  culpable  omission  of  the  person  upon  whose  mo- 
tion, and  under  whose  management,  the  inquisition  was  con- 
ducted. For  although  notice,  and  the  presence  of  the  party 
to  be  affected,  are  not  indispensable  to  give  validity  to  the 
judgment  of  the  court,  Beihea  v.  MGLeniore^  1  Ired.  523,  yet, 
the  person  whose  liberty  and  property  is  to  be  taken  away, 
should  be  there.  It  was  the  duty  of  the  defendant.  Jacks,  to 
notify  the  petitioner  to  be  there,  and  the  action  of  the  Court 
without  either  presence  or  notice,  entitle  her  to  a  rehearing, 
and  to  a  reversal  of  the  former  judgment  of  the  Court,  if 
found  against  truth  and  right. 

As  to  merits,  it  is  only  necessary  for  us  to  say  that  the  alle- 
gations of  the  petition  set  them  forth  sufficiently,  and  the  af- 
fidavits abundantly  support  the  allegations. 

Tliere  has  been  no  delay  attributable  to  the  petitioner ;  as 
soon  as  she  heard  of  the  judgment  had  in  the  County  Court 
against  her,  she  commenced  sucli  proceedings  as  she  was  ad- 


% 

390  m  THE  SUPPwEME  COUPwT. 

Do  well  V.  Jacks. 


vised  were  proper.  She  has  continued  to  prosecute  these,  in 
some  shape  or  other,  with  the  utmost  diligence,  and  any  de- 
lay whicli  has  attended  the  attainment  of  her  rights,  lias  been 
attributable  to  the  inherent  infirmity  of  human  tribunals  and 
judgments,  and  not  to  any  lack  of  zeal  and  activity  in  the 
pursuit.  The  delay,  therefore,  is  not  in  the  way  of  the  pres- 
ent assertion  of  her  rights. 

The  appointment  of  J.  O.  Martin,  guardian,  was  incidental 
to  the  proceedings  instituted  by  Jacks  in  the  County  Court  of 
Wilkes.  Should  the  verdict  and  judgment  rendered  thereon, 
upon  the  petition  of  Jacks,  be  reversed,  on  certiorari,  the  con- 
nection of  Martin  Avith  the  petitioner,  may  be  abrogated  in- 
cidentally. A  direct  proceeding  against  him  for  such  pur- 
pose is  not  necessary.  All  that  is  necessary  is  notice,  and  he 
already  has  that  by  reason  of  his  connection  with  the  peti- 
tioner. 

We  repeat  that  the  treatment  of  the  unfortunate  subject  of 
this  legal  strife  has  been  harsh,  and  calculated  to  alarm  and 
distress  the  nervous  temperament  of  persons  at  her  time  of 
life.  She  should  have  a  fair  investigation  of  her  rights,  and, 
if  found  a  proper  subject  for  custody,  should  be  put  into  kind 
and  gentle  hands  ;  otherwise,  be  permitted  to  go  free,  and  do 
what  she  will  with  her  property. 

The  judgment  of  the  Superior  Court  is  correct,  and  should 
be  affirmed.  Let  this  opinion  be  certified  to  the  said  Court, 
that  it  may  proceed  according  to  law. 

Pek  Cubiam,  Judgment  affirmed. 


JUNE  TEEM,  1861.  391 


Gibbs  V.  Willisms. 


ELISHA  GIBBS  v.  J.  R.  WILLIAMS. 

(Construction  of  a  written  ins^trumcnt  upon  its  peculiar  phraseology  and  con- 
comitant circumstances.) 

Where  one  agreed  to  become  surety  for  another,  on  condition  that  the  cred- 
itor should  bring  suit  within  a  reasonable  time,  and  he  did  so  shortly  after 
the  expiration  of  the  credit,  but  was  nonsuited  on  the  ground  of  not  ap- 
pearing by  counsel  or  otherwise,  it  was  held  that  another  suit  brought  im- 
mediately after  such  nonsuit  was  sustainable.  • 

Tins  T^•as  an  action  of  asstoipsit,  tried  before  Feench,  J.,  at 
the  last  Spring  Term  of  Davie  Superior  Court. 

The  suit  was  brought  in  the  County  Court  against  the  de- 
fendant and  one  AVilliain  F.  Miller,  and  the  plaintiff  failing 
to  recover  against  Williams,  appealed  to  the  Superior  Court, 
as  to  him.  The  declaration  was  in  two  counts.  1st,  on  the 
following  written  agreement  executed  by  the  defendant : 

"Mr.  Elislia  Gibbs.  I  will  stand  as  security  for  William 
F.  Miller  for  one  hundred  and  twenty-live  dollars  until  the 
25th  of  this  instant,  and  if  he  fails  to  make  payment  by  that 
time,  and  you  fail  in  commencing  suit  against  both  of  us  at 
the  time  above  specified,  I  will  then  be  released  as  security. 
This  January  7th,  1860.  (Signed.)       J.  R.  Williams." 

2nd  Count,  for  five  beeves,  delivered  to  W,  F.  Miller  by  the 
plaintiff. 

The  plaintiff  proved,  that  during  the  second  week  of  Janu- 
ary, 1860,  William  F.  Miller  delivered  to  him  the  above  writ- 
ten agreement  of  J.  H.  AVilliams,  upon  which  ])laintift'  deliv- 
ered to  Miller  five  beeves,  of  the  value  of  $125. 

It  was  further  proved,  that  the  plaintiff  sued  out  a  writ 
against  the  defendant  and  W.  F.  Miller,  which  was  duly  exe- 
cuted on  them,  and  returned  to  March  Term,  1860,  of  Davie 
County  Court,  the  same  being  the  first  court  held  in  said 
county  after  the  25th  of  January,  1860,  upon  which  the  plain- 
tiff' was  nonsuited,  for  the  reason,  that  he  failed  to  employ 


393  IN  THE  SUPREME  COURT. 

Gibbs  V.  Williams. 

counsel  at  that  Court.  TJiis  xor'it  was  issued  after  the  25th 
of  January. 

The  writ,  in  the  present  suit,  was  5th  of  May,  1860. 

The  defendant's  counsel  resisted  plaintiff's  right  to  recover, 
on  the  ground,  that  he  had  failed  to  bring  suit  on  the  25th  of 
Januarj^,  1860,  and  the  Court  intimating  an  opinion  that  the 
objection  was  valid,  the  plaintiff  took  a  nonsuit  and  appealed. 

T.  J.  Wilson,  for  the  plaintiff. 
Clement,  for  the  defendant. 

Battle,  J.  The  decision  of  the  case  depends  upon  the 
construction  of  the  instrument  of  writing,  set  forth  in  the  bill 
of  exceptions.  The  circumstances  under  which  that  instru- 
ment was  given  bj  the  defendant,  Williams,  must  be  consid- 
ered, in  order  to  arrive  at  a  proper  understanding  of  its  mean- 
ing. It  was  presented  to  the  plaintiff"  by  the  defendant,  Mill- 
er, at  the  time  when  the  latter  was  purchasing  from  the  plain- 
tiff'a  number  of  beef  cattle.  Of  course,  then,  it  must  have 
been  intended  as  a  security  to  the  plaintiff"  in  the  credit  wliich 
he  was  giving  to  Miller;  for  if  the  pui'chase  were  for  cash, 
the  instrument  was  entirel}^  unnecessary.  In  the  light  of  a 
security,  why  was  a  time  fixed  for  its  termination  ?  Certain- 
ly, because  the  credit  was  to  expire  at  that  time,  for,  in  no 
other  way  can  we  affix  any  sensible  meaning  to  it.  Under- 
stood in  that  sense,  the  plaintiff'  could  not  sue  Miller  before, 
nor  on  that  day  ;  neither  could  he,  according  to  the  terms  of 
the  agreement,  sue  the  other  i)arty  until  he  was  prepared  to 
sue  both.  When  was  he  to  sue  them?  The  answer  is  within 
a  reasonable  time  after  the  expiration  of  the  credit ;  and  a 
writ,  returnable  to  the  next  term  of  the  court,  in  which  pro- 
cess was  duly  executed  after  that  time,  must,  ,we  think,  be 
deemed  a  reasonable  time  within  the  contemplation  of  the 
parties. 

But  it  is  said  that  such  suit  was  of  no  avail,  because  the 
plaintiff,  by  his  neglect,  in  not  employing  counsel,  was  non- 
suited.    That  is  true,  but  the  nonsuit  was  on  the  motion  of 


JUNE  TEEM,  1861.  398 


Roughtoa  V.  Brown. 


the  defendants,  and  tbej  cannot  now  be  heard  to  object  to 
M-hat  was  done  at  their  instance.  This  latter  objection  does 
not  seem  to  have  been  relied  npon  bj  the  defendant.  Wil- 
liams, in  the  Court  below,  and  we  only  notice  it,  because,  from 
the  facts  stated,  it  has  been  presented,  and  has  been  urged  in 
the  argument  before  us. 

Thinking  that  his  Honor  erred  in  the  construction,  which 
he  put  upon  the  written  instrument,  we  must  reverse  the  judg- 
ment of  nonsuit,  and  order  a  venire  de  novo. 

Per  CuiiiAM,  Judgment  reversed. 


J.  L.  ROUGHTON  and  ivi/e  v.  ISAAC  T.  BROWN. 

A  writ  of  error  coram  nobis,  lies  from  any  court  of  record  returnable  to  it- 
self, and  not  from  a  superior  to  an  inferior  court. 

Only  the  parties  to  a  judgment,  as  to  whom  there  is  error  of  fact,  need  join 
in  a  writ  of  error  coram  nobis. 

The  husband  of  a  ferae  covert  against  whom  a  judgment  has  been  taken, 
must  join  with  her  in  an  application  for  a  writ  of  error  coram  nobis. 

Petition  for  a  writ  of  error  coram  nobis,  heard  before 
French,  J.,  at  the  last  SpriugTerm  of  Yadkin  Superior  Court. 

The  petition  was  filed  in  the  name  of  the  husband  and  wife, 
in  the  County  Court  of  Yadkin,  upon  due  notice  given,  pray- 
ing for  a  writ  of  error  to  reverse  a  judgment  rendered  against 
the  petitioner,  Amelia  and  others,  at  a  former  term  of  the  said 
Court,  upon  the  ground,  that  she  was  at  the  time  of  the  ren- 
dition of  such  judgment  a  feme  covert.  The  County  Court 
granted  the  pra3'cr  of  the  petition  and  ordered  the  writ  of  er- 
ror to  issue,  from  which  the  defendant,  in  error,  appealed  to 
the  Superior  Court.     It  appeared  in  the  Superior  Court,  that 


394  IN  THE  SUPEEME  COURT. 

Rough  ton  V.  Brown. 

said  Amelia  was  a  feme  covert  at  the  time  the  judgment  was 
rendered  ;  that  she  had  joined  her  husband  and  others,  in  the 
bond,  on  which  the  judgment  was  taken  ;  that  execution  had 
issued  on  such  judgment,  and  that  the  hind  of  the  said  Ame- 
lia had  been  sold  under  it 

His  Honor,  in  the  Superior  Court,  being  of  opinion  against 
the  petitioners,  refused  the  writ  asked  for ;  from  which  the 
petitioners  appealed  to  the  Supreme  Court. 

Clement,  for  the  plaintiff's. 
Mitchell,  for  the  defendant. 

Battle,  J.  The  reasons  which  induced  the  Judge,  in  the 
Court  below,  to  reject  the  application  for  the  writ  of  error 
aoraTYi  nobis,  are  not  stated,  but  in  this  Court,  the  objection 
to  it  is  based  upon  two  grounds  \ 

1st.  That  it  ought  to  have  been  brought  in  the  Superior 
Court  and  not  in  the  County  Court,  and 

2ndl3^  That  all  the  defendants,  in  the  judgment,  ought  to 
have  been  parties  in  the  petition  for  the  writ.  In  our  opin- 
ion neither  ground  of  objection  is  tenable. 

1.  The  distinction  between  an  ordinary  writ  of  error  and  a 
writ  of  error  coram  nobis  is,  that  the  former  is  brought  for  a 
supposed  error  in  law,  apparent  upon  the  record,  and  takes 
the  case  to  a  higher  tribunal,  where  the  question  is  to  be  de- 
cided and  the  judgment  sentence  or  decree  is  to  be  affirmed 
or  reversed  ;  while  the  latter  is  brought  for  an  alleged  error 
of  fact,  not  appearing  u])on  the  record,  and  lies  to  the  same 
court,  in  order  that  it  may  correct  the  error,  which  it  is  pre- 
sumed would  not  have  been  committed,  had  the  fact,  in  the 
first  instance,  been  brought  to  its  notice.  A  writ  of  eiTor  of 
this  kind  will  lie  to  any  court  of  record,  and  as  our  county 
courts  are  courts  of  record,  we  cannot  conceive  of  a  reason 
why  one  of  them  may  not  correct  an  error  of  fact  in  its  judg- 
ment, upon  a  writ  of  error  brought  befoi-e  itself.  See  2nd 
Tidd's  Practice,  1136,  and  Lassiter  v.  RaT])er,  10  Ire.  392. 

2.  As  to  the  second  ground  of  objection  ;  we  are  aware  that 


JUNE  TEEM,  1861.  395 

Roughton  V.  Brown. 

an  ordinary  wi-it  of  error  must  be  brought  in  the  names  of  all 
the  parties  to  the  judgment,  and  if  one  or  more  of  them  be 
unwilling  to  join  in  it,  there  must  be  a  summons  and  sever. 
ance  of  such  objecting  party  or  parties ;  Walte?'  v.  jStol'oe, 
1  Ld.  Raymond,  71,  Carth.  8  ;  Shar2)e  v.  Jones,  3  Murph.  306. 
AVithout  stopping  to  enquire,  whether  this  rule,  in  relation  to 
writs  of  error  for  matter  of  law,  may  not  be  altered  by  an 
equitable  construction  of  the  27th  section  of  the  4th  chapter 
of  the  Revised  Code,  which  gives  to  one  or  more  defendants 
the  right  to  appeal,  alone,  from  a  judgment  against  him  or 
them  and  others,  we  do  not  find  any  direct  authority  that  the 
rule  ever  has  been  ajiplied  to  writs  of  error  coram  nobis,  and 
we  do  not  perceive  any  reason  why  it  should  be  so  applied. 
The  usual  instances  of  error  in  fact,  requiring  the  interven- 
tion of  this  writ,  are  those  of  judgments  against  infants  and 
femes  covert,  where  the  fact  of  such  infancy  or  coverture  does 
not  apjiear  on  the  I'ccord.  In  such  cases,  it  is  manifest  that 
the  judgment,  if  otherwise  proper,  Avill  be  erroneous  only  as 
to  them  and  not  as  to  the  otlier  defendants.  Why,  then, 
should  the  other  defendants  be  parties  to  the  writ,  when  they 
cannot  have  any  interest  in  reversing  the  judgment?  "We 
cannot  perceive  any  necessity  for  it,  and  in  our  practice  shall 
not  require  it.  In  the  case  of  coverture,  the  husband  must  be 
joined  with  the  wife,  because  she,  as  a  general  rule,  cannot 
sue  or  prosecute  any  legal  proceeding  without  him. 

Our  conclusion  is,  that  the  oixler  appealed  from  must  be 
reversed;  and  this  will  be  certified  to  the  Superior  Court,  in- 
order  that  \\ lyrocedcndo  ma}'  be  issued  to  the  County  Court. 

Per  Curiam,  Judgment  reversed. 


m 


CASES  AT  LAW, 


ARGUED  AND  DETERMINED 


SUPREME  COURT  OF  NORTH  CAROLINA, 
AT  MOROANTON. 


AUGUST  TERM,  1S61. 


STATE  V.  WALTER  C.  GRAHAM. 

Where  a  pavty  has  neither  possession,  nor  a  right  of  possession,  to  land,  he  canr 
not,  upon  an  indictment  for  unlawfully  removing  a  fence  therefrom,  raise  a 
question  as  to  a  right  of  entry,  nor  is  it  any  defense  to  him  that  he. did  the 
act  to  bring  oh  a  civil  suit,  in  order  to  try  the  title.  *'"'**■  '  " 

Indictment  for  unlawfully  removing  a  fence,  tried  before 
O&BoiiNE,  J.,  at  the  Fall  Term,  1860,  of  Cleaveland  Superior 
Court, 

The  following  special  verdict  was- found  by  the  jury  :  "The 
fence  removed  was  part  of  a  fence  that  surrounded  a  cultiva- 
ted field  in  possession-  of  the  prosecutor,  A  grant  for  the 
tract  of  land,  of  which  the  tield.  in  question,  formed  a  part, 
had  ifesued  to  the  ancestor  of  the  defendant,  who  wsis  his  heir- 
at-law,  and  who,  as  his  heir,  acquired  his  title ;  that  the  pros- 

G 


398  IK  THE  SUPKEME  COURT. 

State  V.  Graham. 

ecutor  had  been  in  the  adverse  possession  of  this  tract  for 
more  than  seven  years  with  color  of  title  ;  that  the  prosecu- 
tor, with  a  part  of  his  fence,  inclosed  a  piece  of  ground  be- 
longing to  the  defendant,  of  which  the  prosecutor  had  not 
,^  had  seven  years  possession,  but  that  no  part  of  the  fence  re- 
moved was  on  this  piece ;  that  the  defendant,  claiming  title 
to  the  whole  land  covered  by  the  prosecutor's  deed,  gave  him 
notice  of  his  intention  to  remove  the  fence  on  a  certain  day, 
so  that  an  action  of  trespass  might  be  brought  against  him  to 
try  the  title  to  the  land,  and  on  that  day,  in  the  absence  of 
the  prosecutor,  and  without  his  consent,  the  defendant  with 
his  slaves,  removed  the  fence." 

On  this  verdict,  the  Court  gave  judgment  against  the  de- 
fendant, from  which  he  appealed  to  this  Court. 

Attorjiey  Gcmej^al,  for  the  State. 
Gaither,  for  the  defendant. 

Manly,  J.  It  appears  from  the  special  verdict  in  this  case, 
that  the  portion  of  the  land  from  which  the  fence  was  remov- 
ed, was  not  only  in  possession  of  the  prosecutor,  but  belong- 
ed to  him  by  virtue  of  possession  under  color  of  title.  No 
question,  therefore,  can  be  raised  upon  the  case  as  to  the  pow- 
er of  the  defendant,  in  an  indictment  of  this  character,  to  ex- 
culpate himself  by  showing  that  he  had  title  to  the  land,  and, 
consequently,  a  right  of  entry.  Whatever  may  have  been 
intended,  the  record  fails  to  raise  any  such  question,  and  we 
do  not  think  proper  to  express  an  opinion  upon  it. 
«  The  onl}^  question  actually  presented  is,  whether  a  trespass 
committed  by  the  removal  of  a  fence  from  land  of  which  the 
defendant  had  neither  possession,  nor  right  of  possession,  is, 
in  case  of  an  indictment  under  the  Code,  ch.  34,  sec.  103.  de- 
fensible upon  the  ground  that  it  was  committed  with  a  view 
to  provoke  a  civil  action  only,  and  try  the  title.  The  question 
involves  no  difficulty.  An  act,  in  itself  indictable,  done  by 
one  capable  of  committing  crime,  is  not  exempt  from  crimi- 
nal cognizance  in  our  courts,  by  the  failure  of  the  perpetrator 


AUGUST  TERM,  1861.  399 

State  V.  England. 

to  foresee  or  expect  indictment  The  object  in  committing 
the  act,  can  make  no  difference.  All  the  consequences  which 
the  law  annexes  to  it,  will  follow,  notwithstanding,  inadver- 
tence or  ignorance  in  the  perpetrator. 

The  section  of  the  Code  in  question,  declares  "  if  any  one 
shall  unlawfnlly  and  wilfull}'  remove  any  fence,  or  part  of  a 
fence  surrounding  a  cultivated  field,  every  person,  so  offend- 
ing, shall  be  deemed  guilty  of  a  misdemeanor."  The  special 
verdict  against  the  defendant  affirms  all  tlie  facts  necessary  to 
constitute  the  offence,  and  there  is  nothing  stated  to  excuse 
him  from  the  consequences.  If  he  desired  to  invite  a  civil 
suit  to  test  rights  to  the  locus  in  q7io,  he  should  have  taken 
care  to  confine  himself  to  such  acts  as  would  subject  him  on- 
ly to  an  action  of  that  nature. 

Tlie  judgment  of  the  Superior  Court  upon  the  verdict,  is 
correct,  and  should  be  afiirmedw 

Pee  Curiam,  Judgment  affirmed. 


STATE  V.  SAMUEL  P.  ENGLAND. 

Where  the  prosecutor  lost  a  carpet  bag  oU  the  public  highway,  aud  directed 
one  to  get  it  for  him,  and  he  did  so  as  his  bailee,  but  concealed  the  article, 
and  denied  having  found  it,  it  was  ktld  that  this  was  but  a  breach  of  bail- 
ment, and  not  larceny. 

This  was  an  indictment  for  larcMy,  in  stealing  a  shirt, 
tried  before  Osborne,  J^,  at  the  last  Fall  Terra  of  McDowell 
Superior  Court. 

Tlic  jury  found  the  following  facts  as  a  special  verdict,  viz; 
"The  defendant  is  indicted  for  stealing  a  shirt;  the  article  al- 
leged to  have  been  stolen,  was,  with  other  articles,  in  a  carpet 
bag,  whicli  was  lost  by  the  prosecutor  on  the  highway,  lead- 
ing fi-om  Morganton  to  Marion';  the  defendant  resided  on  the 
highway,  and  the  prosecutor  in  passing  his  residence,  inform' 


400  IJSr  THE  SUPREME  COURT. 


1 


State  V.  England. 


ed  the  defendant  that,  between  liis  house  and  that  of  one 
William  Murph}'^,  who  lived  on  the  same  road,  about  a  mile 
and  a  half  from  the  defendant's,  he  had  lost  his  carpet  bag, 
and  requested  him  to  get  it,  and  give  it  to  one  Halliburton,  who 
lived  in  the  village  of  Marion  ;  the  defendant  found  the  car- 
pet bag  and  took  it  into  possession,  and  on  application  to  him 
for  it,  stated  that  he  did  not  have  it,  and  had  not  found  it; 
on  search  being  made,  it  was  found  concealad  in  a  bag,  which 
was  tied  up  and  secreted  on  his  premises  ;  some  of  the  articles 
contained  in  the  carp,et  b^g  were  missing,  but  whether  they 
were  taken  out  by  the  defendant,  did  not  appear," 

His  Honor  being  of  opinion  on  the  special  verdict,  that  the 
defendant  was  not  guilty  of  larcery,  gave  judgment  that  he 
be  discharged,  from  which  the  solicitor,  for  the  State,  ap- 
pealed. 

Attorney  General^  for  the  State. 
Gaither,  for  the  defendant. 

Battle,  J.  It  is  conceded,  and,  as  we  think,  properly,  by 
the  Attorney  General,  upon  the  facts  found  b}'-  the  spe- 
cial verdict,  the  defendant  is  not  guilty  of  stealing  the  shirt 
of'the  prosecutor,  as  charged  in  the  bill  of  indictment.  The 
taking  of  the  carpet  bag,  in  which  the  shirt  and  other  articles 
were  contained,  was  not  a  trespass,  because  it  was  done  b^ 
the  express  directions  of  the  owner,  and  the  defendant,  instead 
of  being  a  trespasser,  by  such  taking,  became  a  bailee  of  the 
article,  for  the  purpose  of  carrying  and  delivering  it  to  a  cer- 
tain , person  in  , the  village  of  Marion.  The  subsequent  con- 
cealment of  the  carpet  bag  before  the  trust  created  by  the 
bailment,  was  performed,  even  if  done  antnio  furandi,  was 
not  a  larceny,  but  only  a  breach  of  trust.  This  doctrine  has 
been,  established  by  many  decisions,  of  which  a  collection 
may  be  found  in  Roscoe's  Criminal  Evidence,  beginning  at 
page.  596,  (3  Am.  from  3  Lon.  Ed.)        .     .  .  \ 

We  have  assumed  that  the  carpet  bag  was  taken  by  the 
defendant,  under  a  bailment,  because  the  special  verdict.finds 


AUGUST  TERM,  1861.  401 

State  V.  England. 

such  to  have  been  the  fact,  and  no  intendment  can  be  raised, 
that  tlie  defendant  formed  the  design,  before  he  found  the 
article,  to  take  and  appropriate  it  to  his  own  use.  Whether  the 
testimony  would  have  justified  the  jnrv  in  taking  the  latter 
view,  and  finding  accordingly,  and  if  so,  what  would  have 
been  the  legal  consequence  of  it,  is  not  our  province  to  de- 
cide. 

The  terms  of  the  special  verdict  preclude  anotlier  view  of 
the  case,  which  might  have  been  adverse  to  the  defendant : 
It  seems  that  the  carpet  bag,  when  found  concealed  on  the 
defendant's  premises,  had  been  rifled,  and  a  part  of  its  con- 
tents taken  out  and  carried  away  ;  but  whether  the  shirt  was 
one  of  the  missing  articles,  is  not  stated  ;  though  it  is  stated, 
as  a  part  of  the  verdict,  that  it  did  not  appear  that  the  miss- 
ing articles  were  taken  by  the  defendant.  Had  the  jury  found 
that  they  were  taken,  animo furandi,  by  him,  it  might  have 
been  contended  that  he  was  guilty  of  larceny,  upon  the  dis- 
tinction thus  stated  by  Lord  Hale:  "  If  a  man  deliver  goods 
to  a  carrier,  to  carry  to  Dover,  and  he  carr}-^  them  away,  it  is 
no  felony  ;  but  if  the  carrier  have  a  bale  or  a  trunk  with 
goods  in  it,  delivered  to  him,  and  he  break  the  bale  or  trunk 
and  carry  the  goods  away,  animo  furandi,  it  is  a  felonious  tak- 
ing ;"  see  1  Hale's  P.  C.  50i,  505,  Ros.  Crim.  Ev.  598.  The 
grounds  upon  which  this  distinction  is  based,  and  many  of 
the  cases  given  in  illustration  of  it,  may  be  found  cited  and 
commented  upon  in  the  latter  work,  but  it  is  unnecessary  for 
us  to  pursue  the  enquiry  here,  for  the  reason  already  stated, 
that  the  ternls  of  the  special  verdict  prevent  the  question  fiom 
being'presented. 

There  is  no  error  in  the  judgment,  from  which  the  appeal 
is  taken,  and  it  must  be  so  certified  to  the  Superior  Court. 

Per  Cueiam,  Judgment  affirmed. 


402  m  THE  SUTEEME  COURT. 


Taj^lor  V.  Marcus. 


HENRY  TAYLOR  v.  SERUG  MARCUS,  ei  al 

A  defendant,  by  going  to  trial  before  a  justice  of  the  peace,  on  the  merits  of 
his  case,  without  making  objection  to  the  want  of  service  by  a  proper  of- 
ficer, is  not  at  liberty  to  take  the  objection  in  an  appellate  court. 
Where  there  was  a  trial  before  a  justice  of  the  peace,  and  an  appeal,  and  no 
objection  appears  on  the  face  of  the  proceeding  to  the  service  of  the  war- 
rant, it  will  be  assumed  in  the  appellate  court,  that  the  objection  was  waiv- 
ed below. 

Action  of  debt,  tried  before  Osbokne,  J.,  at  the  Fall  Term, 
1860,  of  Watauga  Superior  Court. 

The  action  was  commenced  bj  warrant  before  a  justice  of 
the  peace.  The  warrant  was  directed  to  one  N.  C.  Shull, 
who  was  not  an  oiScer,  nor  the  deputy  of  an  oflBcer,  and  was 
by  him  executed  and  returned.  The  parties  went  to  trial  on 
the  merits,  and  a  judgment  was  rendered  against  tlie  defend- 
ants for  the  plaintiff 's  demand,  from  which  he  appealed  to 
the  Superior  Court.  In  that  Court  a  motion  was  made  to  dis- 
miss the  warrant  for  the  defect  of  service,  but  his  Honor  was 
of  opinion  that  the  objection  was  not  taken  in  apt  time,  and 
refused  to  dismiss,  from  which  judgment  defendants  appealed 
to  this  Court. 

JVeal,  for  the  plaintiff, 

Xo  counsel  appeared  for  the  defendant  in  this  Court. 

Manly,  J.  We  concur  with  the  view  which  his  Honor 
took  of  the  case,  in  the  Court  below.  If  the  defendants  wish- 
ed to  avail  themselves  of  the  irregularity,  that  the  warrant 
was  not  executed  by  a  person  having  authority  of  law  to  do 
so,  it  ought  to  have  been  brought  to  the  attention  of  the  jus- 
tice when  tliey  appeared  before  him.  Having  appeared  and 
contested  the  plaintiff's  demand  on  the  merits,  they  are  not 
at  liberty,  in  the  appellate  tribunal,  to  fall  back  upon  the 
want  of  a  proper  service  of  the  process.  The  exception  to  the 
service,  if  taken  before  the  justice,  would  have  been  good, 
but  it  is  an  irregularity  which  is  waived  by  a  failure  to  ex- 


AUGUST  TEEM,  1861.  403 


Suttle  V.  Turner. 


cept  at  that  time,  and  by  going |o  trial  upon  the  merits.  One 
may  be  become  a  party  to  a  suit  witliout  service  of  any  pro- 
cess. He  may  accept  service,  or  he  may  actually  appearand 
contest  rights  in  dispute,  which  is  equivalent  to  acceptance  of 
service,  and  after  a  trial  upon  the  merits,  in  any  such  case,  it 
is  too  late  for  a  contestant  to  say  he  was  not  properly  brought 
into  Court. 

1^0  formal  pleadings  are  requisite  in  a  justice's  court;  the 
warrant  is  the  declaration  and  memoranda  of  the  objections 
to  the  recovery,  are  the  pleas.  And  if  there  is  a  trial  of  the 
case,  without  objections  appearing  to  the  service,  or  form  of 
the  warrant,  it  will  be  assumed  that  these  were  waived ;  as 
pleading  iu  chief,  in  a  court  of  record,  is  regarded  as  a  waiv- 
er of  matters,  which  might  have  been  made  available  by  plea 
in  abatement.  Defences  must  be  brought  forward  by  pleas, 
or  what  are  considered,  iu  our  practice,  equivalent  to  pleas, 
made  iu  order  and  in  apt  time  ;  else  they  cannot  be  heard. 

We  are  of  opinion,  therefore,  in  this  case,  that  the  defend- 
ants by  going  to  trial  before  the  justice  on  the  merits  of  their 
case  and  without  making  objection  to  the  want  of  service  by 
a  proper  officer,  waived  that  defect  of  service,  and  was  not  at 
liberty  to  resort  to  it  in  a  subsequent  stage  of  the  cause. 

Per  Curiam.  Judorment  affirmed. 


GEORGE   W.  SUTTLE  and  wife  v.  FIELDING  TURNER. 

Wherever  a  deceased  person  has  left  a  will  and  omitted  to  appoint  an  execu- 
tor, or  the  person  appointed  has  refused  to  qualify,  the  court  of  ordinary 
has  a  discretionary  power  to  appoint  any  proper  person  administrator  with 
the  will  annexed. 

Petition  to  revoke  letters  of  administration,  heard  before 
Dick,  J.,  at  the  Spring  Term,  18G1,  of  Rutherford  Superi- 
or Court. 


•^ 


404  IN  THE  StFPKEME  COUKT. 


Suttle  V.  Turner. 


At  November  Term,  1859,  tf  Rutherford  County  Court,  the 
■will  of  Martha  Haye  was  duly  proved,  and  the  executor, 
therein  named,  having  renounced,  the  defendant.  Fielding 
Turner,  was  appointed  administrator  with  the  will  annexed. 
In  the  May  following,  the  plaintiffs,  George  W.  Suttle  and 
his  wife,  Mary,  petitioned  the  County  Court  of  Ruther- 
ford, stating  the  probate  of  the  will  and  the  appointment  of 
defendant,  and  that  the  renunciation  of  the  executor  was  ir- 
regular and  void,  pra3nng  that  said  Turner  be  removed,  and 
the  persons  appointed  by  the  will  be  qualified,  and  in  case 
they  refuse  to  qualify,  that  some  proper  person  be  appointed 
to  the  office  of  administrator  with  the  will  annexed.  The 
petition  sets  out  that  the  plaintiff,  Mary  Suttle,  "  is  the  only 
heir-at-law  of  Martha  Haye,  deceased,  and  thereby  entitled 
to  administer  on  her  estate." 

The  answer  of  the  defendant,  Turner,  insists  that  the  renun- 
ciation of  the  executors  was  duly  and  formall}''  entered,  and 
that  the  Court  cannot  enquire  into  the  validity  of  their  renun- 
ciation, unless  they  were  made  parties.  On  the  hearing  of 
this  petition,  the  County  Court  revoked  the  letters  of  admin- 
istration granted  to  the  defendant,  ordered  a  reprobate  of  the 
will,  and  at  the  instance  of  the  plaintiffs,  appointed  one  Wash- 
burn administrator,  with  the  will  annexed.  The  County  Court 
having  refused  the  defendant  an  appeal,  the  case  was  brought 
up  by  certiorari  to  the  Superior  Court,  and  there,  the  judg- 
ment of  the  County  Court  was  affirmed — the  letters  of  admin- 
istration granted  to  the  defendant,  were  revoked  and  a  pro- 
cedendo ordered  to  the  County  Court,  from  which  judgment, 
the  defendant  appealed  to  this  Court. 

Lorjan^  for  the  plaintiffs. 
GaUhei\  for  the  defendant. 

Battle,  J.  This  is  a  petition  filed  in  the  County  Court  of 
Rutherford,  for  the  purpose  of  having  letters  of  administra- 
tion GUDi  tcstamento  cunncxo^  on  the  estate  of  Martha  Haye, 
which  had  been  previously  granted  to  the  defendant  by  that 


^ 


AUGtJST  TERM,  1861.  405 


Suttle  V.  Turner. 


Court,  revoked,  and,  thereupon,  that  the  executors  named  in 
the  will,  or  sonie  of  them,  should  qualify  thereto,  or  in  the 
event  of  their  renunciation,  that  letters  of  administration 
should  be  granted  to  the  petitioners  or  to  some  discreet  per- 
son. Among  the  allegations,  upon  which  the  petition  is 
sought  to  be  sustained,  is  the  main  one,  that  when  the  letters 
of  administration  were  granted  to  the  defendant,  the  execu- 
tors liad  not  legally  renounced  their  right  to  the  office  confer- 
red upon  them  by  the  will,  and  that,  therefore,  the  grant  was 
improvidcntly  made,  and  ought  to  be  revoked.  In  the  peti- 
tion, the  feme  petitioner  is  alleged  to  bo  "the  only  heir-at- 
law"  of  the  testatrix,  and  on  that  ground,  the  right  of  admin- 
istration is  claimed  for  her. 

The  answer  of  the  defendant  alleges,  that  the  I'cnnnciation 
of  the  persons  named  as  executors,  was  properly  made  and 
entered  of  record  by  the  Court,  before  the  letters  of  adminis- 
tration were  granted  to  him,  and  he  insists  that  his  letters, 
even  if  thc}^  were  erroneously  granted,  cannot  be  revoked, 
except  in  a  proceeding  by  the  executors  themselves  for  the 
purpose,  or  at  least,  in  one  to  which  they  shall  be  made  par- 
ties. 

We  are  clearly  of  opinion  that  this  objection  is  fatal  to  the 
petition. 

Assuming  that  by  the  terms,  "  the  onl^^-heir-at-law,"  the 
feme  petitioner  meant  to  allege  that  she  was  the  only  next  of 
kin  of  the  testatrix,  that  does  not  give  her  any  right  to  the 
administration  cicni  testamento  anneaco.  The  right  of  any  per- 
son to  the  grant  of  administration  upon  tljc  estate  of  a  dece- 
dent, depends  upon  the  statute  on  that  subject,  which  applies 
only  to  the  cases  of  persons  dying  intestate.  Whenever  the 
deceased  has  left  a  will,  the  courts  of  ordinary  have  a  discre- 
tionary power,  in  the  event  of  there  being  no  executor  named 
in  the  will,  or  if  those  nominated  die,  or  refuse  to  qualify,  to 
appoint  any  proper  person  to  administer  with  the  will  annex- 
ed. In  the  exercise  of  this  discretion,  they  usuall}'  appoint 
the  residuary  legatee,  or  some  other  person  interested  in  the 
estate,  their  object  being  thus  to  secure,  on  behalf  of  a  faith- 


406  m  THir  SUPREME  CPUET. 


Reynolds  v.  Edney. 


t'ul  administration  of  the  office,  tlie  interest  of  the  appointee. 
In  the  present  case,  the  feme  petitioner  does  not  appear  to 
have  even  this  recommendation  of  interest  in  her  favor,  for  it 
is  not  stated,  in  the  petition,  that  she  took  any  thing  wliatever 
under  the  will  of  the  testatrix.  The  petitioners  are,  therefore, 
to  be  regarded  asstrangers,  intermeddling  in  matters  in  which 
they  have  no  concern,  and,  as  such,  they  cannot  be  permitted 
to  interpose  in  behalf  of  the  executors,  by  a  proceeding  to 
which  the  latter  are  not  parties,  and  in  which  they  cannot  be 
heard. 

The  judgment  of  the  Superior  Court  must  be  reversed,  and 
the  petition  dismissed  with  costs. 

Per  Curiam,  Judgment  reversed. 


J.  D.  REYNOLDS  v.  B.  M.  EDNEY. 

It  is  a  rule  of  law,  that  one  liable  ia  case  another  does  not  pay,  is  en- 
titled to  notice  of  the  default  of  the  primary  debtor,  before  suit  can  be 
brought  against  him,  and  it  forms  no  exception  to  the  rule,  that  such  pri- 
mary debtor  was  insolvent  at  the  date  of  the  original  transaction,  or  be- 
came so  afterwards. 

This  was  an  action  on  the  case,  tried  before  Dick,  J.,  at 
the  Spring  Terra,  1861,  of  Henderson  Superior  Court. 

The  action  was  brought  on  the  following  undertaking,  en- 
dorsed on  a  judgment  rendered  in  favor  of  the  plain  tiff  against 
one  John  B.  Woodfin,  to  wit :  "I  guaranty  the  within  judg- 
ment in  consideration  of  six  months  forbearance  from  the 
12th  of  October,  1855.  B.  M.  Edney." 

The  judgment  and  the  M-ritten  agreement  above  set  out, 
were  both  made  at  the  same  time,  to  wit,  12th  of  October, 
1855.  It  was  not  paid  by  Woodfin,  who  died  insolvent  in 
Tennessee  before  the  suit  was  brought  against  the  defendant, 


AUGUST  TEJIM,  1861.  407 

Keynolds  v.  Edney. 

and  was  insolvent  in  fact,  at  tlie  date  of  the  judgment,  but  no 
notice  was  proved  to  hp.ve  been  given  the  defendant  of  Wood- 
fin's  failure  to  jjaj',  previously  to  the  suit's  being  brought. 
The  insolvency  of  Woodfin  was  insisted  on  by  the  plaintiff's 
counsel,  as  an  exception  to  the  general  rule,  as  to  notice  in 
such  cases.  The  Court  held  tlie  position  M'ell  taken,  and  in- 
structed the  jury  accordingly,  who  found  a  verdict  for  the 
plaintiff.  Defendant's  counsel  excepted.  Judgment  for  plain- 
tiff, and  appeal  by  the  defendant. 

mo  counsel  appeared  for  the  plaintifi'in  this  Court. 
Gaither,  for  the  defendant. 

Pearson,  C.  J.  It  is  a  general  rule  that  one  who  under- 
takes, collaterally,  to  pay  a  debt,  is  not  liable  to  an  action, 
unless  he  has  notice  of  the  failure  to  pay  by  the  party  who  is 
primarily  liable,  as  in  the  case  of  a  guarantor,  or  the  maker 
of  a  bill  of  exchange,  or  the  endorser  of  a  bill  or  promissory 
note,  or  a  surety  in  respect  to  a  co-surety. 

This  rule  is  founded,  not  merely  on  the  consideration,  that 
the  party,  thus  secondarily  liable,  is  entitled  to  notice,  in  or- 
der that  he  ma}'  take  measures  to  indemnify  or  secure  him- 
self, but  on  the  further  ground,  that  one  ought  not  to  be  sued 
or  subjected  to  the  payment  of  costs,  unless  he  is  in  default, 
by  neglecting  or  refusing  to  paj^  a  debt  after  he  has  received 
notice  of  the  default  of  the  party  who  was  bound  to  pay  in 
the  first  instance  ;  for,  until  notice,  he  may  reasonably  pre- 
sume tljat  the  debt  has  been  paid,  and,  consequently,  is  not 
iu  default. 

We  are  not  aware  of  any  authority  for  making  an  excep- 
tion to  this  rule,  Avhore  the  part}^,  primarily  liable,  is  insolv- 
ent, either  at  thp  date  of  the  original  transaction,  or  becomes 
so  afterwards,  and  it  is  clearly  against  principle  and  in  con- 
flict with  one  of  the  grounds  on  which  the  rule  is  founded. 
Indeed,  in  all  of  the  cases,  the  necessity  of  giving  notice,  is 
treated  as  a  condition  precedent  to  the  liability  of  the  party 
who  is  to  become  bound  in  the  second  instance,  which  is  in 


408  IN  THE  SUPREME  COURT. 


Psnriell  t'.  Scoggin. 


110  case  dispensed  with,  except  on' the  ground  of  fraud  ;  as  if 
one  draws  a  bill  without  having  funds  in  the  hands  of  the 
drawee  ;  Parsons  on  Contracts,  504 ;  ^-SpeHiier  v.  Carter^  4 
Jones'  Rep.  2SS. 

This  Court  is  of  opinion  that  the  plaintiff  could  not  sustain 
his  action  without  proof  that  he  had  given  notice  to  the  de'- 
feiidant  of  the  default  of  John  B.  Woodfin,  so  as  to  have  of- 
fered an  opportunity  to  the  defendant  of  paying  the  debt 
without  cost,  and  putting  him  in  default  by  failing  to  do  so. 

Yenire  de  novo. 

'I  ' 

Per  Curiam,  Judgment  reversed. 


DAVE   PANNELL,  Execidor,  v.  LEWIS  SCOGGIN  and  others. 

Under  the  act  of  Assembly,  Revised  Code,  chapter  119,  section  9,  one  named 
as  executor  in  a  script,  propounded  as  a  -will,  though  named  as  plaintiff  in 
an  issue  devisavit  vel  non,  may  be  examined  as  a  witness  for  the  caveator 
as  well  as  for  the  propounder. 

This  was  an  issue  devisavit  vel  non,  tried  before  Osborne, 
J.,  at  the  Fall  Term,  1860,  of  Rutherford  Superior  Court. 

One  of  the  questions,  presented  on  the  trial  was,  whether 
the  person  named  in  the  script,  as  executor,  and  who  pro- 
pounded the  will  for  probate,  and  as  such,  was  stated  on  the 
record  to  be  the  plaintiff,  could  be  a  witness  for  the  caveatoi'S, 
who  are  stated  as  defendants.  His  Honor  rejected  the  wit- 
ness, and  the  caveators  excepted. 

There  was  evidence  adduced  on  the  trial,  to  the  effect,  that 
certain  provisions  dictated  by  the  decedent  to  the  draftsman, 
iu  behalf  of  some  of  the  caveators,  had  been  omitted  from  the 
script  by  mistake,  and  it  was  contended,  on  this  account,  that 
tlie  will  was  not  that  of  the  decedent,  on  which  point,  his 
Honor  instructed  the  jury,  that  though  they  might  believe 


AJJi^lLF^'j;  Tl^RU,  Upi.  409 


that  particular  prpvisions  had  been  omitted  by  the  dvcaftsmaii 
by  miSitake,  yet,  if  tlie  testator  had  published  the  will  as  it 
was,  and  had  the  capacity,  required  by  law,  as  had  been  ex- 
plained to  them,  the}^  should  iiud  for  the  plaintiff. 
The  caveators  again  excepted. 

Gaither,  for  the  propounders. 
Zogan,  for  the  caveators. 

Battle,  J.  In  the  instructions  given  to  the  jury  upon  the 
questions  set  out  in  the  bill  of  exceptions,  we  entirely  concur, 
aiid  ;^V.^,do  not  deem  it  necessary  to  add  any  thing  tQ,|I^e  re- 
marks made  by  his  Honor  on  those  questions. 

But  upon  the  point  of  the  rejection  of  the  executor  as  a  wit- 
ness for  the  defendants,  we  think  his  Honor  fell  into  an  error. 
The  script  propounded  for  probate,  bears  date  the  10th  day  of 
August,  185S,  which  is  since  the  Eevised  Code  went  into  op- 
eration, and  by  the  9th  section  of  the   119th  cliapter  of  that, 
Code,  a  person,  named  as  an  executor,  is  made  competent  to 
be  examined  as  a  witness,  either  for  or  against  the   alleged 
M'ill.     The  words  of  the  enactment  are,  that  "  no  person,  on 
account  of  his  being  an  executor  of  a  will,  shall  be  incompe- 
tent to  be  admitted  as  a  witness  to  prove  the  execution   of 
such  will,  or  to  prove  the  validity  or  invalidity   thereof." — 
Here,  the  executor  was,  offered  by  the  defendants,  as  a  wit- 
ness., to  prove  the  invalidity  of  the  alleged  will,  and  the  stat- 
ute, in  express  terms,  makes  him  competent  for  that  purpose, 
unless  his  being  a  party  plaintiff"  to  the  issue,  is  sufficient  to 
to  exclu'''e  him.     If  that  were  so,  the  object  of  the  statute 
might  always  be  defeated  by  making  the  person,  named  as 
executor,  a  party  to  the  issue,  a  result  whicli  the  courts  arc 
not  at  liberty  to  allow.     Indeed,  it  is  said  that  to  the  issue  of 
rhvisavit  vd  no?},  there  are,  strictly,  no  parties;  it  being  in 
the  nature  of  a  proceeding  in  rem,'    see   Enloe   v.   SherHlly 
()  Ire.  212  ;  Love  v.  Johmton,  12  Ire.  355,  and  other  cases. 
Hence,  the  declarations  of  persons  appearing  on  the  record  as 
contestants,  are  admissible  or  not,  according  to  their  interest, 


410  IN  THE  SUPREME  COURT. 

Gregory  v.  Richards. 

and  not  according  to  the  side  of  the  issue  on  which  they  are 
placed.  It  is  certainly  within  the  power  of  the  Legislature  to 
make  one  who  is  a  party  to  the  issue,  in  the  strict  sense  of  the 
common  law,  a  witness  either  for  or  against  himself  in  a  civil 
case,  of  which  we  have  instances  in  the  book-debt  law,  and 
in  issues  of  fraud  made  up  under  the  insolvent  law.  See  Re- 
vised Code,  chap.  15,  and  chap.  59,  section  13.  Much  more, 
then,  can  an  executor  be  made  competent  as  a  witness  in  an 
issue  to  which,  though  he  may  be  a  party  in  some  sense,  he  is 
not  so  in  the  strict  common  law  sense.  This  consideration 
makes  it  easier  for  us  to  adopt  a  construction  of  the  act,  which 
was  intended  to  give  the  benefit  of  an  executor's  testimony  to 
every  person  who  should  be  interested,  either  in  the  estab- 
lishment, or  defeat  of  a  paper-writing  propounded  as  a  will. 
In  the  present  case,  the  executor  was  offered  as  a  witness 
against  his  interest,  and  we  think  the  act,  referred  to,  makes 
him  competent,  and  it  w^as,  therefore,  error  in  his  Honor  to 
reject  him. 

The  judgment   must   be   reversed,  and  a  venire  de  novo 
awarded. 

Per  Cukiam,  Judgment  reversed. 


SANFORD  B.  GREGORY  v.  WILLIAM  RICHARDS. 

Possession  of  a  stolen  article,  raises  a  presumption  of  theft  by  the  possessor, 
.     only  in  case  such  possession  is  so  recent  after  the  theft,  as  to  show  that 

the  possessor  could  not  well  have  come  by  it  otherwise  than  by  stealing  it 
It  is  not  proper  in  a  court  to  base  instructions  on  a  hypothesis,  not  sustained 

by  the  record  or  the  Judge's  case  sent  up. 

This  was  an  action  of  slander,  tried  before  Dick,  J.,  at  the 

Spring  Term,  1861,  of  Lincoln  Superior  Court. 
The  writ  was  issued  on  23rd  February,  1857. 


AUGUST  TEbM,  1861.  411 

Gregory  v.  Richards. 

The  declaration  sets  forth  that  the  defendant  accused  the 
plaintiff  with  stealing  his  bridle.  Pleas — general  issue,  stat- 
ute of  limitations  and  justification. 

The  plaintiff  proved  that  he  was  a  man  of  good  character, 
and  that  the  defendant,  on  the  19th  of  February,  1857,  said 
of  and  to  the  plaintiff,  "you  stole  my  bridle,  and  I  can  prove 
it,"  also  that  he,  the  plaintiff,  stole  his  (defendant's)  bridle, 
and  he  could  prove  it. 

The  defendant  introduced  a  M'itness  by  the  name  of  Iluf- 
man,  who  stated  that  defendant,  in  lS5i,  was  engaged  in 
working  on  the  plank-road,  near  Brevard's  iron  works,  and 
had  procured  from  Mr.  Brevard  a  stable,  where  he  kept  his 
liorses  and  bridles;  that  in  the  month  of  December,  1854, 
Mr.  Brevard  made  a  public  sale  of  a  part  of  his  personal  pro- 
perty, which  continued  for  several  days,  and  that  a  number 
of  persons  attended  the  sale,  and  the  plaintiff  amongst  the 
others  ;  that  the  plaintiff  had  a  one  horse-wagon  with  some 
articles  for  sale  ;  that  on  Tuesda}'^  morning  of  the  sale,  a  sor- 
rel horse  was  found  in  the  stable  of  defendant,  above  men- 
tioned, which  the  defendant  locked  up  ;  that  on  the  night  of 
that  day,  the  staple  of  the  stable  door  was  draven  and  the 
horse  removed  ;  that  the  defendant's  bridle  was  left  in  the 
cutting  room  of  the  stable  on  the  evening  of  the  night  when 
the  stable  was  broken  open,  and  that  the  same  was  missing 
on  the  next  morning,  and  that  he  never  saw  it  again  until  he 
found  it  in  the  possession  of  the  plaintiff  at  Dallas,  at  April 
Court,  1855,  on  the  same  sorrel  horse  tliat  had  been  locked 
up  in  defendant's  stable  ;  that  the  defendant  demanded  the 
bridle  of  the  plaintiff,  who  said  that  he  had  got  a  negro  at 
Brevard's  to  put  up  his  horse,  and  that  when  it  was  brought 
out  by  the  negro,  this  bridle  was  on  it ;  that  he  had  tried  at 
the  sale  to  get  his  own  bridle,  but  could  not  do  so,  and  he 
said  further,  that  on  his,  (witness',)  stating  that  the  bridle  in 
question,  was  the  property  of  the  defendant,  the  plaintilf  gave 
it  up  to  him.  The  witness  further  stated,  that  the  plaintiff 
and  defendant  were  very  unfriendly  at  the  time  of  the  sale 
aforesaid,  and  continued  so  up  to  the  time  then  jjrescnt. 


412  m  THE  SUPREME  COUET. 


Gregoiy  v.  Eichards. 


The  plaintiff  proved  by  one  DeUingery  that  he  saw  the 
plaintiff  at  Brevard's  sale,  M-ith  an  old  blind,  bridle  in  his 
hand,  saying  that  he  liad  lost  liis  own  bridle,  and  had  got  that 
in  its  place  ;  that  he  had  got  a  negro  t@  put  up  his  horse,  who 
had  bronglit  it  out  with  this  bridle  on  it ;  tliat  plaintiff"  en- 
quired for  Brevard's  overseer,  and  on  being  informed  where 
he  M'as,  went  off  in  the  direction  indicated. 

He  also  proved  by  one  Cloningei\  tliat  witness  heardacoji- 
versation  between  plaintiff"  and  defendant  about  the  bridle, 
in  wliich  the  former  stated,  that  he  had  his  horse  put  up  a>t 
Brevard's  sale,  and  that  a  negro  had  brought  it  out  with  the 
bridle  in  question  on  it;  to  which  the  defendant  replied,  "  you^ 
or  the  negro  stole  the  bridle,  and  I  don't  know  which  is  tlie 
worse,  you  or  the  negro."  This  conversation  was  in  1855i^ 
sometime  after  the  bridle  was  found  at  Dallas. 

The  defendant's  counsel  asked  the  Court  to  charge  the  jury, 
that  the  bridle  being  found  in  the  possession  of  the  plaintiff" 
at  Dallas,  four  months  after  it  was  lost,  the-  law  raised  a  pre- 
sumption that  he  was  the  thief. 

The  Court  charged  the  jury,  that  when  an  article  of  person- 
al property  had  been  stolen,  and  was  proved  in  the  possession 
of  a  person  soon  after  the  theft,  the  law  raised  a  presumption 
that  the  possessor  was  the  thief,  but  where  several  months 
had  elapsed  before  the  propert}''  was  found-,  as  in  the  present 
case,  no  such  presumption  was  raised.,  Defendan.t's  counsel 
excepted. 

The  defendant's  counsel  excepted  further,  because  the  Court 
had  admitted  evidence  of  the  speaking,  of  words  more  than 
six  months  before  the  bringing  of  the  suit.  Also,,because  the 
Court  had  omitted  to  bring  to  the  attention  of  the  jury  a  point 
made  by  him,  which  was  :  that  "  if  the  plaintiff  Jiad  got  the  bri- 
dle from  the  negro  unlawfully,  and  Icnew  that  it  was  not  his 
own,  and  took  it  away  to  appropriate  it  to  his  own  use,  it 
would  be  larceny."  His  Honor  said  he  did  not  remember 
that  the  instruction  was  asked  in  the  argument,  and  on  being 
assured  by  the  counsel  that  it  was,  he  asked  why  he  was  not 


AUGUST  TEEM,  1861.  413 

Gregory  v.  Richards. 

reminded  of  it  at  the  close  of  his  charge  ;  to  which  the  coun- 
sel replied,  that  he  did  not  think  proper  to  do  so. 

The  jury,  under  the  instructions  of  the  Court,  found  a  ver- 
dict for  the  plaintiflf  for  $900.  Judgment  for  the  plaintiff. 
Appeal  by  the  defendant. 

Gaither,  for  the  plaintiff. 
Thompson,  for  the  defendant. 

Manly,  J .  The  principal  point  of  the  case  is  under  the 
plea  of  justification,  and  upon  the  instructions  given  as  to  the 
presumption  arising  from  the  possession  of  a  stolen  article. 
The  instructions  arc  in  clear  accordance  with  the  law.  Pos- 
session of  a  stolen  article  raises  a  presumption  of  theft  by  the 
possessor,  only  in  case  such  possession  is  so  recent  after  the 
theft,  as  to  show  that  the  possessor  could  not  well  have  come 
by  it  otherwise  than  by  stealing  it  himself.  In  all  other  cases, 
the  question  is  an  open  one,  to  be  decided  upon  the  whole  tes- 
timony, and  the  fact  of  possession,  in  the  latter  class  of  cases, 
is  of  greater  or  less  cogency  according  to  the  length  of  time 
intervening — the  nature  of  the  property  and  other  circum- 
stances. The  difference  is,  that  the  recent  possession,  of  which 
we  speak,  throws  upon  the  accused  the  burden  of  explaining 
it,  else  he  will  be  taken  to  be  the  thief.  In  other  cases,  there  is 
no  such  conclusion,  but  the  fact  of  possession  is,  with  the  oth- 
er facts,  left  to  the  jury  as  evidence  upon  the  question  of  guilt. 
Thus,  we  distinguish  between  evidence  raising  a  presumption 
of  guilt,  and  evidence  tending  to  establish  guilt. 

By  adverting  to  the  definition,  which  we  have  given  of  a 
recent  2^ossessioti,  from  which  the  presumption  will  be  made, 
it  will  be  at  once,  and  clearly,  seen,  that  the  case  before  us 
does  not  admit  of  an  application  of  the  rule,  and  the  Court 
very  properly  declined  applying  it. 

Other  points'  made  below,  upon  a  rule  for  a  new  trial,  are 
not  sustained  by  the  record,  or  by  the  Judge's  case.  There 
was  no  evidence  offered,  or  received,  of  the  speaking  of  the 
words  more  than  six  months  before  the  bringing  of  the  action, 

7 


414  m  THE  SUPREME  COURT. 

McDauiel  v.  Johns. 

and  it  was  not  necessary,  therefore,  for  the  Court  to  clistin- 
guisli  between  the  purposes,  for  which  such  evidence  would 
be  admissible,  and  the  purposes  for  which  it  would  not. 

So,  in  the  second  place,  supposing  the  bridle  to  have  been 
obtained  from  a  negro,  in  the  manner  stated  by  the  prosecu- 
tor, there  was  no  evidence  tending  to  show  a  felonious  intent 
on  the  part  of  plaintiff  at  the  time  of  obtaining  it,  and  it  would 
not  have  been  proper,  therefore,  for  the  Court  to  base  any  in- 
structions upon  the  hypothesis  of  such  felonious  intent. 

Whether  such  instruction  were  or  were  not  asked  for,  then, 
is  not  material. 

There  is  no  error,  and  the  judgment  should  be  affirmed. 

Pee  Cueiam,  Judgment  affirmed. 


DEURY  McDANIEL  v.  JOHN  JOHNS. 

Where  an  executor  gave  a  part  of  a  standing  crop,  for  hauling  the  remainder 
to  the  crib,  it  was  held  not  to  subject  him  to  the  penalty  imposed  for  sell- 
ing a  deceased  person's  estate  otherwise  than  at  public  auction. 

Action  of  debt  for  a  penalty,  tried  before  Osbokne,  J.,  at 
the  Fall  Term,  18C0,  of  Rutherford  Superior  Court. 

The  action  was  brought  for  the  penalty  of  $200,  which,  it 
was  alleged,  the  defendant  had  incurred  by  selling  the  goods 
of  his  testator  at  private  sale.  It  was  proved,  that  on  enter- 
ing upon  the  duties  of  his  office,  the  defendant  found  a  crop 
of  corn  standing  in  the  field,  and  hired  one  John  Covington 
to  haul  it  to  the  crib,  and,  as  a  compensation,  gave  him  for 
his  wagon  and  team  two  dollars  and  fifty  cents  per  day,  to  bo 
paid  in  corn  at  50  cents  per  bushel,  and  that  the  corn  thus 
paid,  was  a  part  of  that  stated  as  standing  in  the  field,  and 
belonging  to  the  estate  of  the  testator. 


£A. 


AUGUST  TERM,  1801.  415 

McDaniel  v.  Johns. 

The  Court  being  of  opinion,  on  this  state  of  facts,  that  the 
plaintiff  was  not  entitled  to  recover,  so  instructed  the  jury, 
who  found  for  the  defendant.     Plaintiff  appealed. 

]^o  counsel  appeared  for  the  plaintiff'  in  this  Court. 
Logan,  for  the  defendant. 

Peakson,  C.  J.  We  concur  with  his  Honor  in  the  opinion 
that  this  case  does  not  come  within  the  operation  of  the  stat- 
ute, which  forbids  the  sale  of  the  property  of  deceased  per- 
sons, except  by  "  public  vendue  or  auction." 

The  transaction  was  not  a  sale  of  any  portion  of  the  corn, 
but  only  a  convenient  mode  of  getting  the  crop  of  corn  haul- 
ed to  the  crib,  by  allowing  a  part  to  be  taken  as  commissions 
in  payment  for  the  price  of  liauling.  It  may  l,)e  that  tiiis  was 
the  only  mode  in  which  the  executor  could  have  procured  the 
work  to  be  done.  It  docs  not  ap])ear  that  he  had  any  cash  of 
the  estate  in  hand,  and  certainly  he  was  not  required  to  ad- 
vance funds  of  his  own,  or  to  pledge  his  individual  credit. 
In  short,  the  case  does  not  fall  within  the  meaning  of  the 
statute,  or  the  evil  which  it  was  intended  to  guard  against. 

Per  Curiam,  Judgment  affirmed. 


^PPEIS^DIX. 


IN  THE  MATTER  OF  HAMILTON  C.  GRAHAM. 
HABEAS  CORPUS. 

A  soldier  who  is  under  arrest,  and  in  confinement  for  a  violation  of  orders, 
cannot  procure  his  discharge  by  means  of  a  writ  o?  habeas  corpus  on  the  al- 
legation that  he  was  an  infant  at  the  time  of  enlistment  Nor  can  he  or 
bis  guardian  raise  that  question  before  the  civil  authorities,  while  he  is  in 
custody,  and  amenable  for  trial  before  a  military  tribunal. 

Whether  a  minor  of  the  age  of  twenty  years,  who  enlisted  under  the  provi- 
sions of  the  act  entitled  an  "an  act  to  raise  10,000  State  troops,"  and  has 
taken  and  subscribed  the  oath  prescribed  for  enlistment,  is  entitled  to  his 
discharge  on  the  ground  of  his  nonage,  and  that  he  enlisted  without  the 
consent  of  his  guardian,  g^iere  ? 

A  HABEAS  coEPUs  was  returned  before  his  Honor  the  Chief 
Justice,  who  called  to  his  assistance  the  other  two  Judges  of 
the  Supreme  Court,  The  application  was  on  the  petition  of 
Hamilton  C.  Graham  and  his  guardian,  E.  G.  Haywood. 

The  petitioners  alleged  that  the  said  H.  C.  Graham,  in  May, 
1861,  was  enlisted  as  a  private  soldier  by  Major  Stephen  D, 
Ramseur  into  the  company  called  the  Ellis  Light  Infantry ; 
that  he  was  then  an  orphan,  without  father  or  mother,  and  but 
twenty  years  old,  and  that  such  enlistment  was  made  without 
the  consent  of  his  said  guardian,  and  that  the  said  orphan  had 
an  estate  in  the  hands  of  his  guardian,  which  was  sufficient 
to  support  him  without  resorting  to  such  service,  and  that 
the  said  H.  C.  Graham  was  detained  by  the  said  S.  D.  Ram- 
seur against  his  will  at  the  encampment  of  the  said  military 
company  near  the  city  of  Raleigh. 

The  prayer  is,  that  the  said  H.  C.  Graham  should  be  brought 


APPENDIX.  417 

before  his  Honor,  the  Chief  Justice,  by  the  said  6.  D.  Kam- 
seur,  with  the  cause  of  his  detention. 

Major  Eamseur  brought  forward  the  body  of  the  said  HL 
C.  Graham,  and  made  return  as  the  cause  of  his  detention, 
that  the  said  Graham  had  enlisted  for  the  war  into  the  com- 
pany of  artillery  under  his  command,  and  had  taken  and  sub- 
scribed an  oath,  (set  forth  as  part  of  the  return,)  and  on  the 
15th  of  the  then  current  month,  was  placed  by  him,  as  the 
commanding  officer,  in  the  guard  house  for  a  violation  of  or- 
ders, and  was  then  in  such  custody,  and  awaiting  a  trial  by  a 
court  martial,  for  said  oflfence. 

The  matter  was  argued  by  E.  G.  Haywood  for  the  petition- 
ers, and  the  Attorney  Oenei'dl  for  Major  Ramseur. 

Peaeson,  C.  J.  Upon  the  return  of  the  writ,  I  requested 
Judges  Battle  and  Manly,  to  assist  me,  and  aftdr  hearing 
arguments  on  both  sides,  and  giving  to  the  subject  full  con- 
sideration, they  concur  with  me  in  the  opinion  that  the  peti- 
tioner, Graham,  is  not  entitled  to  his  discharge. 

It  is  admitted  that  Graham  voluntarily  enlisted  as  a  private 
soldier  on  the  24th  of  May  last,  aud  the  oath  was  taken  and 
subscribed  by  him  according  to  the  forms  required  by  law. — 
The  application  is  put  on  the  ground  that  he  was,  at  the  time, 
under  the  age  of  twenty-one  years,  to  wit,  of  the  age  of  twen- 
ty, and  enlisted  without  the  consent  of  his  guardian. 

The  return  meets  the  application,  m  limine,  by  the  fact  that 
on  the  I5th  instant,  "  Graham,  by  the  order  of  the  command- 
ing officer  was  put  in  the  guard  house  for  positive  violation  of 
orders,  to  await  his  trial  before  a  court  martial,  where  he  has 
remained  until  brought  here  in  obedience  to  the  writ." 

To  meet  this  preliminary  objection,  two  positions  were  re- 
lied on : 

let.  The  statute  gives  authority  to  raise  by  enlistment,  ten 
thousand  ^'-menf  Graham  was  not  a  man,  being  under  the 
age  of  twenty-one  years ;  consequently,  the  recruiting  officer 
had  no  power  to  make  a  contract  of  enlistment  with  him,  and 
the  contract  is  void  and  of  no  effect. 

If  the  agent,  acting  for  one  of  the  parties,  exceeds  his  pow- 
er, the  consequence  contended  for  would  follow ;  for  instance. 


418  APPENDIX. 

if  a  woman  was  enlisted  ;  but  I  do  no  adopt  this  very  restricted 
construction  of  tlie  statute.  The  word  "  w^e?^"  must  be  under- 
stood in  reference  to  the  purpose  for  which  it  is  used,  and 
obviously,  the  purpose  was,  not  to  indicate  thesort  of  persons, 
but  to  fix  the  number,  in  the  sense  of  "  ten  thousand  soldiers 
or  troops."  So,  I  think  there  was  no  defect  of  power  on  the 
part  of  the  recruiting  officer,  and  the  contract  cannot  be  treat- 
ed as  a  nullit3\ 

2d.  By  a  general  rule  of  law,  contracts  made  with  one,  un- 
der the  age  of  twenty-one  years,  may  be  avoided  hj  him  ;.th6 
exceptions  are  contracts  for  necessaries — of  marriage  and  ap- 
prenticeship, on  the  ground  of  benefit  to  the  infant,  and  there 
is  no  special  benefit  to  an  infant,  arising  out  of  a  contract  to 
enlist  as  a  soldier  to  authorize  the  Court  to  take  it  out  of  the 
general  rnle  and  make  it  an  exception  in  the. absence  of  some 
legislative  provisibns,  such  as  are  to  be  met  with  in  the  act% 
of  Congress  of  the  United  States. 

This  position  may  be  admitted  for  the  sake  of  the  argument, 
and  it  (foes  not  meet  the  objection  ;  for  the  contract,  not  be- 
ing void,'  but  merely  voidable,  had  the  legal  effect  of  estab- 
lishing the  relation  of  officer  and  soldier,  which  existed  at  the 
time  Graham  was  guilty  of  disobedience  of  orders,  iconse- 
ej[uently,  his  act  was  unlawful,  and  his  arrest  and  iinprison- 
men t  lawful,  and  he  cannot  avoid  tlie  consequences  by  going 
behind  his  act  and  be  allowed  to  impeach  the  validity  of  his 
enlistment  until  he  has  been  discharged  by  the  court-martial. 
This  is  clear ;  otherwise  there  would  be  no  difterence  between 
a  Toid  and  a  voidable  contract ;  whereas,  the  latter  has  legal 
effect,  and  continues  until  it  is  avoided,  and  in  this  instance, 
the  contract  had  the  legal  effect  of  putting  Graham  in  the 
colidition  of  a  private  soldier,  and  making  him^  amenable  as 
such,  to  militar}'-  law,  and  that  having  attached  to  him,  he 
must  be  discharged  by  it,  before  he  can  be  allowed  to  raise 
the  question  before  the  civil  authorities,  as  to  his  further  de- 
tention being  unlawful.  If  such  were  not  the  law,  all  order 
and  discipline  in  the  army  would  be  subverted.  Would  it  be 
tolerated  that  one  should  insinuate  himself  into  the  condition 
of  a  soldier,  and  when  by  the  disobedience  of  orders  or  other 
violation  of  duty,  the  safety  of  the  whole  army  has  been  en- 


APPENDIX.  419 

dangered,  evade  the  military  jurisdiction  by  being  beard  to 
impeach  the  validity  of  his  enlistment  ? 

For  these  reasons,  neither  the  petitioner  Graham,  nor  the 
other  petitioner,  his  guardian,  can  be  allowed  to  raibe  the 
question,  whether  the  contract  of  enlistment  can  be  avoided 
by  him.  I  do  not,  therefore,  feel  at  liberty  to  enter  into  the 
subject,  or  intimate  any  opinion  in  respect  to  it. 

It  is  considered  by  me,  that  the  petitioner,  Hamilton  C. 
Graham,  be  remanded  and  put  in  possession  of  Maj.  Stephen 
D.  Eamseur,  and  that  the  latter  recover  his  costs  of  the  peti- 
tioners, to  be  taxed  by  the  clerk  of  the  Supreme  Court  at 
Paleigh. 


\*  Addendum  :  The  Keporter  is  requested  to  state  that  the 
case  of  BiUups  v.  Biddick,  decided  at  the  last  term,  ante 
163,  which  purports  to  have  been  decided  by  Judge  Howard, 
was  never  seen  by  him,  but  was  made  up  by  the  counsel  and 
a  ^>ro/(?/v/ia  judgment  entered  as  they  had  agreed. 


CASES  AT  LAW, 

ARGUED  AND  DETERMINED 

IN  THE 

SUPREME  COURT  OF  NORTH  CAROLINA, 
AT  RALEIGH. 


JUNE  TEEM,  1862. 


EDWARD  MASON  v  THOMAS  WHITE  AND  WIFE  ei  al 

V  legacy  given  immediately  to  a  class,  vests  absolutely  in  the  persons  com- 
posing that  class  at  the  death  of  the  testator;  and  a  legacy  given  to  a  class 
subject  to  a  life-estate,  vests  in  the  persons  composing  that  class  at  the 
death  of  the  testator,  but  not  absolutely,  for  it  is  subject  to  open  so  as  to 
make  room  for  all  persons  composing  the  class,  not  only  at  the  death  of 
the  testator,  but  also  at  the  falling  in  of  the  intervening  estate. 

Vhere  one  thus  included  in  a  class  with  an  intervening  estate,  died  before  the 
falling  in  of  such  estate,  there  is  no  ground  for  holding  that  his  estate  was 
divested  by  this  event. 

Tnis  was  a  PExmoN  for  the  division  of  slaves,  which  came 
up  from  the  County  Court,  and  was  tried  before  Heath,  J.,  at 
the  Spring  Term,  1861,  of  Perquimons  Superior  Court. 

The  case  is  this  : 


422  IN  THE  SUPREME  COURT. 

Mason  v.  White. 

In  the  year  1838,  Henry  Hollowell  died,  leaving  a  last  will, 
which  was  duly  proved  and  recorded.  In  the  said  will,  after 
a  trifling  legacy  to  his  brothers  and  sisters,  occurs*  the  follow- 
ing clause  :  "  I  give  and  bequeath  to  my  beloved  wife,  Eliz- 
abeth Hollowell,  the  remainder  of  my  estate,  both  real  and 
personal,  during  her  natural  life,  and  at  iier  death  to  be  equal- 
ly divided  among  her  children." 

At  the  time  of  the  death  of  Henry  Hollowell,  his  wife,  the 
said  Elizabeth,  had  three  children  by  a  former  husband,  to 
wit :  Sarah,  who  intermarried  with  the  plaintifi",  Edward  Ma- 
son, Edward  B.  Sutton,  and  Anne,  intermarried  with  Thomas 
H.  White.  Mrs.  Mason  was  alive  at  the  death  of  the  testa- 
tor, Hollowell,  but  died  before  the  death  of  her  mother,  the 
said  Elizabeth,  and  her  husband  took  letters  of  administratj^on 
on  her  estate,  and  filed  this  petition  for  her  share  of  certain 
slaves  which  passed  under  the  said  will. 

The  surviving  brother  and  sister  contested  the  right  of 
the  plaintiff  to  have  a  share  of  these  slaves. 

His  Honor,  in  the  Court  below,  decided  in  favor  of  the 
plaintiff,  and  the  defendants  appealed  to  this  Court. 

Winsto7i,  t/r.,  for  the  plaintiff. 

1^0  counsel  appeared  for  the  defendants  in  this  Court. 

Peaeson,  C.  J.  The  question  presented  is  too  plain  to  ad- 
mit of  discussion ;  a  legacy  given  to  a  class  immediately,  vests 
absolutely  in  the  persons  composing  that  class  at  the  death  of 
the  testator ;  for  instance,  a  legacy  to  the  children  of  A :  the 
children  in  esse  at  the  death  of  the  testator  take  estates  vest- 
ed absolutely,  and  there  is  no  ground  upon  which  children 
who  may  be  born  afterwards  can  be  let  in. 

A  legacy  given  to  a  class  subject  to  a  life-estate,  vests  in 
the  persons  composing  that  class  at  the  death  of  the  testator ; 
but  not  absolutely ;  for  it  is  subject  to  open,  so  as  to  make 
room  for  all  persons  composing  the  class,  not  only  at  the  death 
of  the  testator,  but  also  at  the  falling  in  of  the  intervening 
estate.    This  is  put  on  the  ground  that  the  testator's  bounty 


JUNE  TERM,  1862.  423 

Bond  V.  Billups. 

should  be  made  to  include  as  many  persons  who  fall  under 
the  general  description  or  class  as  is  consistent  with  public 
polic}'' ;  and  the  existence  of  the  intervening  estate  makes  it 
unnecessary  to  settle  absolutely  the  ownership  of  the  proper- 
ty imtil  that  estate  ftills  in.  For  instance,  a  legacy  to  A  for 
life,  and  then  to  her  children,  or,  "  then  to  be  divided  among 
her  children,"  vests  in  the  children 'who  are  m  esse  at  the 
death  of  the  testator,  but  it  vests  subject  to  open,  and  make 
room  for  any  children  who  may  afterwards  be  born  before  the 
;  falling  in  of  the  life-estate,  so  as  to  include  as  many  as  possi- 
siblc  until  it  becomes  necessar}^,  on  the  ground  of  public  pol- 
icy, to  fix  the  ownersliip  absolutely. 

In  our  case,  the  plaintiff's  intestate  was  one  of  the  class  at 
the  death  of  the  testator,  and  although  the  legacy  vested,  sub- 
ject to  open  and  let  in  any  persons  who  might  come  into  ex- 
istence afterwards  and  answer  the  description,  yet,  there  is 
no  ground  on  which  it  can  be  contended  that  the  death  of  one 
of  the  legatees  divested  her  legacy  in  lavor  of  the  surviving 
legatees.  To  have  this  effect,  there  must  be  words  of  exclu- 
sion ;  e.  g.  to  the  children  of  A,  living  at  the  time  of  her  death. 

Per  CuRiAai,     There  is  no  error.     Judgment  affirmed. 


State  on  the  relation  of  R.  H.  L.  BOND  v.  JOS.  R.  BILLUPS,  Adm'r. 

In  an  action  against  an  administrator,  on  his  administration  bond,  for  the 
non-payment  of  a  judgment  previously  rendered  against  him,  such  judg- 
ment is  conclusive  evi^dence  against  him,  both  as  to  the  debt  and  the  ex- 
istence of  assets. 

This  was  an  action  of  debt  on  an  administration  bond,  tried 
before  Heath,  J.,  at  the  Spring  Term,  18G1,  of  Perquimons 
Superior  Court. 

The  action  was  originally  brought  in  the  County  Court,  and 


424  IN  THE  SUPREME  COURT. 

Bond  V.  Billups. 

the  writ  was  taken  ont  against  the  defendant,  Billnps,  and  the 
sureties  to  the  administration  hond,  but  tlie  record  states  thatr 
only  the  defendant  caijie  and  pleaded^  and  he  only  appealed 
to  tlie  Superior  Court. 

The  plaintiff  offered  in  evidence  a  judgment,  which  had 
been  recovered  against  the  defendant,  as  administrator  of  one 
T.  Billups,  at  May  Term,  1S60,  of  Perquimons  County  Court ; 
the  non-payment  of  which  judgnrKent^  was  the  breach  of  the 
bond  declared  on. 

The  defendant  pleaded  fuliy  adsoinistered  and  no  assets  at 
the  time  of  the  original  judgment  and  fwlly  administered  and' 
no  assets  in  this  suit.  And  on  the  trial,  lic  offered  to  show 
that  at  the  time  of  the  judgment  in  the  cou-aty  court,  at  May 
Term,  1860,  he  had  paid  all  the  assets  of  his  testator  upon 
debts  of  equal  dignity  with  that  of  plaintiff,  and  further,  he 
offered  to  show  that  he  had  nc^  assets  of  his  testator  at  ths' 
time  of  the  commencement  of  this  suit.  His  Honor  excluded, 
the  evidence,  and  the  defendant's  counsel  excepted. 

Verdict  and  judgment  for  plaintiff,  and-  appeal  by  the  de- 
fendant. 

Winston^  tPr.,  for  plaintiff. 
No  counsel  for  defendant  in  this  Court. 

Battle,  J.  The  case  of  Armstead  v.  llarromond.,  4  Hawks'" 
Rep.  339,  is  a  direct  authority  in  support  of  the  opinion  ex- 
pressed by  his  Honor  in  the  Court  below.  That  Avas  a  suit 
upon  an  administration  bond  against  the  administrator  and  his 
sureties,  and  although  it  was  held  that  a  previous  judgment 
against  the  adminisirator,  in  which  he  was  fixed  M'ith  assets, 
was  iiot  evidence  again-st  his  sureties,  as  to  tlie  assets,  yet  it 
was  evidence  against  him,  both  as  to  the  debt  and  assets. 
That  the  judgment  against  the  administrator  is  conclusive, 
appears  as  well  from  that  case,  as  from  the  recent  one  of 
of  SincTdand  v.  Murphy^  7  Jones,  242.  Whether  it  was  so 
as  agninst  the  sureties,  we  need  not  enquire,  for  in  the  case 
now  1m  fore  us,  they  were  not  parties  to  the  record  in  the  Su- 


JUNE  TERM,  1862.  425 

McCormic  v.  Leggett. 

perior  Court.  It  is  true,  that  in  the  county  court  tlie  writ 
had  been  issued  against  and  served  upon  them,  but  they  did 
not  appear  and  plead,  and  the  judgment  in  that  Court  was 
rendered  against  the  administrator  alone,  from  which  he  ap- 
appcaled,  and  was,  of  course,  the  only  party  defendant  to  the 
record  in  the  Smperior  Court.  Tlie  evidence  which  he  oflfered 
for  the  purjx)se  -of  showing  that  at  the  time  of  the  previous 
judgment  against  him,  he  had  fully  administered  all  the  as- 
sets which  had  come  into  his  hands,  was,  therefore,  properly 
rejected,  and  the  judgment  must  be  affiitned. 

Per  Curiam,  Judgment  affirmed. 


■Doe  on  the  demise  of  LEANDER  McCORMIC  v.  ROBESON  LEGGETT. 

An  infant  who  has  executed  a  deed  for  land,  cannot  make  the  deed  void  or 
valid  by  any  act  of  his  done  while  under  age. 

To  make  the  deed  of  an  infant  valid,  he  must,  after  coming  of  age,  do  some 
deliberate  act  by  which  he  takes  benefit  under  the  deed,  or  expressly  re- 
cognizes its  validity. 

Matter  which  does  not  affect  the  title,  bnt  only  affords  an  objection  to  the 
further  prosecution  of  the  suit,  as  it  is  then  constituted,  as  marriage  or  death, 
or  the  plaintiff's  taking  possession,  must  be  pleaded  or  otherwise  specially 
brouglit  to  the  notice  of  the  Court;  but  matter  that  goes  to  affect  the  title 
as  the  confirmation  of  an  infant's  deed,  may  be  given  in  evidence  under  the 
general  issue. 

Action  of  rtectmext,  tried  before  Saunders,  J.,  at  the 
Spring  Term,  1861,  of  Robeson  Superior  Court. 

The  following  case  agreed  was  made  out  by  the  counsel  for 
the  rcsj»ective  parties  and  signed  by  them.  The  lessor  for 
tlie  i>laintifF  showed  first  a  deed  from  Gilbert  "VV".  McKay  to 
himself  for  the  land  in  controversy  ;  next  a  deed  from  King, 
sherilfof  Robeson,  to  Sherrod  F.  Leggett,  npon  a  judgment 
and  execution  against  John  A.  Rowland  and  Gilbert  W.  Mc- 
Kay for  tiie  same  land,  the  said  McKay  being  the  same  whe 


426  IlSr  THE  SUPREME  COURT. 


McCormic  v.  Leggett. 

first  sold  to  the  lessor  of  the  plaintiff.  Plainti£F  then  poved 
that  Robeson  Leggett  went  into  possession  as  the  tenant  of 
Sherrod  F.  Leggett,  and  was  in  possession  when  the  declara- 
tion was  served  on  him.  The  sheriff's  deed  is  dated  Feb.  7, 
1854,  reciting  a  judgment  and  execution  from  the  court  of 
pleas  and  quarter  sessions  of  JSTew  Hanover  county,  against 
John  A.  Rowland  and  the  said  Gilbert  W.  McKay.  The  deed 
from  the  said  McKay  to  the  plaintiff's  lessor  for  the  same 
land  is  dated,  August  31,  1850.  The  defendant  then  put  in 
evidence  a  deed  from  McCormic,  the  lessor  of  the  plaintiff, 
to  Gilbert  "W".  McKay,  for  the  same  land,  bearing  date  15th 
April,  A.  D.  1852.  The  lessor  of  the  plaintiff  replied  to  this 
by  showing  that  he  was  under  age  at  the  time  this  deed  to 
McKay  was  made,  also  at  the  time  of  bringing  his  suit,  and 
the  defendant  offered  evidence  further,  that  in  December,  af- 
ter the  suit  had  been  brought,  McKay,  the  bargainee,  made  a 
payment  on  account  of  the  land  which  the  lessor  accepted, 
(admitted  then  to  be  of  full  age.) 

Upon  these  facts,  the  Court  directed  the  jury  to  find  the  de- 
fendant guilty,  which  was  done,  and  from  a  judgment,  ac- 
cording to  the  verdict,  the  defendant  appealed  to  this  Court. 

Shepherd,  for  the  plaintiff. 
W.  L.  McKay,  for  the  defendant. 

Peaeson,  C.  J.  The  statement  of  the  case  made  up  and 
signed  by  the  counsel  for  the  parties,  is  not i  as  clear  as  it 
should  be,  but  from  it,  and  the  admissions  on  the  argument, 
these  points  are  presented. 

1.  Can  an  infant,  who  has  executed  a  deed  for  land,  make 
void  the  deed  by  any  act  while  he  is  under  age  ?  for  instance, 
by  bringing  an  action  of  ejectment  before  he  arrives  at  age, 
against  the  bargainee? 

This  Court  considers  that  the  law  is  settled.  While  under 
age,  he  cannot  affirm  or  disaffirm,  confirm  or  repudiate  any 
act  or  deed ;  for  the  obvious  reason,  that  he  is  supposed  to 


JUNE  TEEM,  1862.  427 

McCormic  v.  Leggett. 

have  the  same  want  of  discretion,  on  account  of  which  his 
first  act  or  deed  is  voidable, 

2.  If  an  infant  sells  and  makes  a  deed  for  a  tract  of  land, 
and  before  coming  of  age,  commences  an  action  of  ejectment 
against  the  vendee,  and  after  he  arrives  at  age,  pending  the 
action  of  ejectment  receives  the  purchase-money  from  the 
vendee,  does  the  fact  of  receiving  the  purchase-money  con- 
firm the  deed,  and  if  so,  can  such  confirmation  be  taken  ad- 
vantage of  by  the  defendant,  without  a  plea  since  the  last  con 
tinuance  ? 

We  consider  it  settled  that  the  deed  of  an  infant  isnotvoidj 
but  is  voidable  by  him  after  he  arrives  at  age — that  in  order 
to  avoid  the  deed,  mere  words  are  not  sufdcient,  but  there 
must  be  some  deliberate  act  done,  by  which  he  takes  benefit 
under  the  deed,  or  expressly  recognizes  its  validity ;  e.  g.  if 
he  takes  a  deed  from  the  vendee  for  a  part  of  the  land  which 
he  had  before  conveyed,  or  if  he  receives  the  whole  or  a  part 
of  the  purchase-money  due  to  him  by  force  and  in  pursuance 
of  the  contract  under  which  the  deed  was  executed.  See  the 
cases,  Iloyle  v,  Stoioe,  2  Dev.  and  Bat.  320  ;  Armfield  v.  Tatef 
7  Ired.  268  ;  Murray  v.  ShankUn,  4  Dev.  and  Bat.  276  ;  Be7i- 
ton  V.  Sanders,  Busb.  3 GO. 

In  regard  to  the  question,  whether  this  act  of  confirmation 
can  be  given  in  evidence  under  the  general  issue,  or  must  be 
pleaded  as  a  plea  since  the  last  continuance :  The  distinction 
is  this:  when  matter  occurs  pending  the  suit,  which  does  not 
afiect  the  title,  but  merely  aftbrds  ground  for  an  objection  to 
the  further  prosecution  of  the  suit  as  it  is  then  constituted, 
such  matter  must  be  pleaded,  or  be  in  some  other  mode  spe- 
cially bi ought  to  the  notice  of  the  Court,  as  when  a  party 
dies  or  marries,  or  the  plain tifi"  takes  possession  of  the  thing 
sued  for.  But  where  the  matter  affects  the  title,  it  may  be 
given  in  evidence  under  the  general  issue ;  indeed,  in  the  ac- 
tion of  ejectment,  the  pleadings  are  so  much  at  large,  that  an 
estoppel  may  be  taken  advantage  of  under  the  general  issue, 
notwithstanding  the  general  rule  that  estoppels  must  be  plead- 
ed specially.     In  our  case,  the  act  of  receiving  the  purchase- 


428  m  THE  SUPREME  COURT. 

Brooks  V.  Walters. 

money  affected  the  title;  for,  by  it  the  deed  was  confirmed, 
and  the  confirmation  related  back  so  as  to  give  effect  to  the 
deed  from  the  time  of  its  execution.  See  the  cases  cited 
above. 

Upon  these  facts,  this  Court  is  of  opinion  that  the  Judge 
belov?"  erred  in  directing  the  jury  to  find  the  defendant  guilty. 

Per  CuRiAii,      Judgment  reversed  and  a  venire  de  novo. 


LARKIN  BKOOKS  v.  ASA  J.  WALTERS. 

Where  it  appeared  that  the  plaintiff,  who  lived  in  Virginia,  had  put  a  note 
into  the  hands  of  the  defendant,  who  collected  it,  and  at  the  time  of  employ- 
ing another  to  make  demand  plaintiff  stated  that  he  had  once  before  sent 
the  defendant's  receipt  over  and  had  got  nothing,  it  was  held  that  this  did 
not  amount  to  proof  that  a  demand  had  been  made  more  than  three  years 
before  the  bringing  of  the  suit,  so  as  to  put  the  statute  of  limitations  in 
motion. 

Action  of  assumpsit  on  the  common  counts,  tried  before 
Heath,  J.,  at  the  Spring  Term,  1861,  of  Washington  Superi- 
or Court. 

The  plaintiff  proved  that  in  the  year  1855,  he  placed  in  the 
defendant's  hands,  for  collection,  a  note  of  one  Grifltin,  for 
about  $85,  and  that  some  time  thereafter,  the  defendant  re- 
ceived the  money.  The  defendant  rested  his  defense  on  the 
statute  of  limitations.  By  the  plaintiff's  witness,  it  appeared 
that  within  three  years  thereafter,  and  within  thi;ee  years  pri- 
or to  the  bringing  of  this  suit,  the  plaintiff,  who  lived  in  Vir- 
ginia, handed  to  a  witness  in  Bertie  county,  in  this  State,  the 
defendant's  receipt  for  the  note ;  and  that  this  witness  demand- 
ed payment  immediately,  which  the  defendant  refused.  This 
took  place  after  the  defendant  had  received  the  money.  This 
witness  also  stated,  that  at  the  time  of  handing  him  the  re- 
ceipt, the  plaintifi  said,  he  had  sent  the  receipt  over  once  be- 


"       JUNE  TERM,  1862.  ti^ 

Brooks  V.  Walters. 

fore  and  had  got  nothing  on  it.  At  what  time  this  occurred, 
the  plaintiff  did  not  state,  nor  did  he  state  any  thing  more  of 
that  transaction  than  that  recited.  The  defendant  relied  on 
this  as  evidence  that  there  had  been  a  former  demand  of  the 
money  and  a  refusal  more  than  three  years  prior  to  the  bring- 
ing of  this  suit,  and  called  on  his  Honor  to  instruct  the  jury 
that  plaintiff 's  claim  was  barred  by  the  statute  of  limitations. 
JEis  Honor  declined  so  to  charge,  but  told  the  jury,  among 
other  tilings,  that  as  to  the  iirst  alleged  demand,  if  it  was 
made,  (which  was  a  question  for  them,)  the  defendant  knew 
when,  where  and  by  whom  it  was  made;  and  the  facf;  that  he 
gave  no  such  evidence,  might  be  considered  by  them  as  tend- 
ing to  show  that  no  such  demand  was  made ;  or  if  made,  was 
made  within  the  limit  of  the  statute.  The  defendant's  counsel 
excepted  to  this  part  of  the  charge. 

Yerdict  and  judgment  for  the  plaintiff  and  appeal  by  the 
defendant. 

No  counsel  appeared  in  this  Court  for  the  plaintiff. 
Winston,  Jr.,  for  the  defendant. 

Manly,  J.  In  order  to  sustain  the  plea  of  the  statute  of 
limitations,  relied  upon  in  the  defense,  it  is  necessary  there 
should  be  proof  of  a  demand  and  refusal  of  the  money  more 
than  three  years  previous  to  the  bringing  of  the  action. 

We  have  considered  the  matter  relied  on  as  proof  in  this  par- 
ticular, and  conclude  it  ought  not  to  have  any  weight  or  ten- 
dency to  establish  it.  To  allow  the  inference  of  a  demand 
and  refusal  to  be  drawn  from  proof  that  the  claim  had,  once 
before,  been  sent  to  this  State  and  nothing  collected  on  it, 
would  be  leading  the  jury  into  the  field  of  conjecture  for  mat- 
ter to  found  their  verdict  upon.  His  Honor  below,  therefore, 
might  have  told  the  jury  that  there  was  no  legal  proof  tend- 
ing to  establish  the  allegation  of  a  demand  and  refusal  more 
than  three  years  before  the  bringing  of  the  action,  and  that 
the  plea  should  be  found,  therefore,  in  favor  of  the  plaintiff. 

This  result  has  been  attained  under  the  instructions  actual- 


430  IN  THE  SUPKEME  COURT. 


Jones  V.  Willis. 

ly  given,  which  makes  it  unnecessary  to  discuss  their  propri- 
ety, No  injustice  has  been  done  the  defendant,  and  the  judg- 
ment against  liim  should,  therefore,  be  atfirmed. 

Per  Curiam,  Judgment  affirmed. 


Deii  on  the  demise  of  E.  W.  JONES  v.  E.  H.  WILLIS. 

Where  a  tenant  entered  into  the  occupation  of  premises  under  an  express 
lease  from  month  to  month,  and  he  continued  the  occupation  for  more  than 
two  years,  there  is  no  reason  why  he  should  be  considered  as  a  tenant' 
from  year  to  year,  and  thus  be  entitled  to  six  months  notice  to  quit. 

What  notice  a  tenant  fron*!  month  to  month  is  entitled  to —  Que7'e  f 

Action  of  ejectment,  tried  before  Heath,  J.,  at  Spring 
Term,  1861,  of  Washington  Superior  Court. 

The  only  question  in  this  cause,  was  on  the  necessity  of  no- 
tice to  quit.  The  premises  sought  to  be  recovered,  was  a 
room  in  a  ware-house  in  the  town  of  Plymouth.  The  plain- 
tiff proved  that  he  let  the  premises  to  the  defendant  on  18th 
of  December,  1856,  at  ten  dollars  for  the  first  month  and  five 
dollars  for  every  succeeding  month  that  he  should  hold  them ; 
that  the  defendant  then  took  possession,  and  has  ever  since 
occupied  the  room,  the  lessor  of  the  plaintiff  having  posses- 
sion of  the  otlier  part  of  the  building.  He  then  proved  by  a 
witness  that  he  demanded  possession  prior  to  the  commence- 
ment of  the  suit,  but  the  witness  could  not  say  how  long  prior 
it  was.  On  this  demand,  the  defendant  refused  to  surrender 
the  premises,  saying  "  the  door  of  the  room  was  on  his  (de- 
fendant's) lot,  and  he  was  willing  to  compromise  with  the 
lessor."  The  writ  was  issued  18th  of  January,  1859,  and  there 
was  no  other  evidence  of  a  demand  than  that  above  stated. 

On  an  intimation  from  the  Court,  that  the  facts  disclosed  a 
tenancy  from  year  to  year,  requiring  six  months  notice  to  quit^ 
the  plaintiff  submitted  to  a  nonsuit  and  appealed. 


JUNE  TEEM,  1862.  431 

Jones  V.  Willis. 

s 

£.  F.  Moore,  for  the  plaintiff. 
Winston,  Jr.,  for  the  defendant. 

Peakson,  C.  J,  This  Court  does  not  concur  in  opinion 
with  his  Honor  on  the  point  upon  which  he  saw  proper  to 
have  the  case  put  in  the  Court  below. 

The  lease  was,  in  express  terms,  one  from  "  month  to  month." 
To  a  plain  mind,  the  process  of  reasoning  by  which  such  a 
lease  could  be  converted  into  a  tenancy  from  j^ear  to  year,  and 
thereby  make  six  months  notice  necessary,  before  either  par- 
ty could  determine  the  relation  of  landlord  and  tenant,  would 
not  readily  occur. 

3Ir.  Winston  took  the  position  that  tlie  courts  favor  tenan- 
cies from  year  to  year,  and  that  in  this  case,  such  a  holding 
would  be  inferred,  from  the  fact,  that  the  defendant  entered 
in  December,  1856,  and  continued  in  possession  up  to  Janua- 
ry, 1859.     This  position  is  not  tenable. 

The  fallacy  of  the  argument  grows  out  of  a  failure  to  distin- 
guish between  a  lease  at  will,  or  a  tenancy  at  will,  which  the 
courts  incline  to  convert  into  a  tenancy  from  year  to  year, 
and  a  lease  like  that  under  consideration,  which,  in  so  many 
words,  is  one  from  month  to  month. 

A  tenancy  at  will  may  be  determined  by  either  party  on 
short  notice — that  is,  reasonable  time  for  the  tenant  to  pack 
up  and  le,ave. 

A  tenancy  from  year  to  year  can  only  be  determined  by 
six  months  notice  prior  to  the  expiration  of  the  current  year, 
whicfh  notice  must  be  given  either  to  the  landlord  or  the  ten- 
ant, as  the  case  may  be,  in  order  to  determine  the  relation. 
The  latter,  therefore,  is  the  better  relation  for  both  parties — 
for  the  landlord,  because  he  will  have  six  months'  time  to  look 
out  another  tenant — for  the  tenant,  because  he  has  that  time 
to  look  out  another  place  ;  and  this  conduces  to  tli-e  public 
good  by  having  all  premises  occupied  and  kept  in  cultivation. 
Upon  these  considerations,  where  there  is  a  tenancy  at  will, 
in  the  first  instance,  if  the  possession  continues  for  more  than 
one  year,  inasmuch  as  the  parties  have  not  fixed  on  any  pre- 


482  IN  THE  SUPKEME  COUET. 

Jones  V.  Willis. 

cise  time,  the  courts  incine  to  imply,  from  the  fact  of  entering 
under  the  second  year,  that  the  holding  is  to  be  from  year  to 
year. 

This  reasoning,  however,  has  no  application  to  a  case  like 
ours,  which  was,  in  the  first  instance,  a  tenancy  from  month  to 
month. 

In  respect  to  a  tenancy  from  month  to  month,  whether  a 
full  month's  notice  should  be  given,  or  half  a  month's  notice 
would  be  sufficient,  we  are  not  called  on  now  to  decide.  In 
Doe  V.  Hazelly  1  Esp.  94,  and  in  Boe  v.  Raffan^  6  ibid,  4, 
it  is  held  that  in  a  tenancy  from  week  to  week,  a  full  week's 
notice  is  certainly  sufficient ;  and  in  a  tenancy  from  month  to 
month,  a  full  month's  notice  was  of  course  sufficient.  Whether 
by  analogy  to  the  doctrine  of  tenancies  from  year  to  year  no- 
tice for  half  of  the  week  or  month  prior  to  its  expiration  would 
not  be  sufficient  is  not  decided;  but  it  is  certain  that  the  anal- 
ogy is  not  complete  ;  for  leases  from  month  to  month  or  from 
week  to  week,  must,  of  course,  be  confined  to  the  rent  of 
rooms  to  live  in,  or  keep  stores,  and  the  conclusion,  that  six 
months  was  reasonable  time  to  give  notice  in  case  of  a  tenant 
from  year  to  year  was  adopted  because  of  the  course  of  hus- 
bandry and  the  time  necessary  for  crops  to  be  planted  and 
matured. 

Mr.  Winston,  in  the  second  place,  took  the  ground,  that 
supposing  his  Honor  to  have  erred  in  respect  to  six  mouth's 
notice,  yet  the  decision  ought  to  be  sustained,  because  notice 
for  a  month,  or  at  all  events,  for  a  half  a  month,  was  required 
in  order  to  determine  the  lease,  and  there  was  no  prooY  of 
such  notice. 

When  the  Judge  interrupts  the  usual  progress  of  a  trial  bj 
an  intimation  of  his  opinion  on  a  particular  point,  and  the 
counsel  submits  to  a  nonsuit,  and  appeals,  with  a  view  of  try- 
ing that  question,  and  it  turns  out  that  his  Honor  was  in  er- 
ror, the  case  should  be  sent  back  for  another  trial,  because  it 
may  be  that  but  for  this  intimation,  additional  evidence  would 
have  been  off'ered  or  other  points  taken,  as,  in  this  instance, 
further  evidence,  in  order  to  fix  the  precise  time  of  the  de- 


JUNE  TERM,  1862'.  438: 

Fagan  v.  Williamson. 

mand  of  possession,  or  raising  the  question   whether  the  de- 
fendant's  saying  that  "  the  door  of  the  room    was  on  his  lot 
and  he  was  willing  to  compromise,"  was  not  takiing  an  ad- 
verse position  inconsistent  with  a  tenancy,  and  by  such  disa- 
vowal dispensing  with  the  necessity  of  any  notice. 

Per  Curiam,  Let  the  nonsuit  be  set  aside  and  a  venire 

de  novo. 


F.  F.  FAGAN  to  use  of  J.  H.  HAMPTON  v.   LSWIS  WILLIAMSON: 

The  right  to  bring  an  action  on  the  case  against  a  sheriff  for  money  collected 
by  virtue  of  hi.>  office,  is  expressly  reserved  in  the  act  of  Assembly,  (Rev. 
Code,  chap.  78,  sections  1  and  2,)  giving  an  action  of  debt  on  his  official 
bond  for  the  same  cause  of  action. 

An  action  of  debt  on  a  sheriff's  official  bond  for  money  collected,  and  a  non- 
suit therein,  is  a  sufficient  demand  to  enable  the  plaintiff  to  sustain  an  ac- 
tion on  the  case  for  the  same  cause  ot  action.. 

An  error  in  a  Judge's  charge  to  the  jury,  which  works  no  injury  to  the  appel-* 
lant,  is  no  ground  for  a  venire  de  novo. 

This  was  an  action  of  assumpsit  tried  before  Heath,  J.,  at 
the  Spring  Term,  1861,  of  Washington  Superior  Court. 

The  plaintiff  declared  against  the  defendant  for  money  had 
and  received,  and  on  the  common  counts.  He  proved  that  he 
recovered  a  judgment  in   the  county  court  of  Washington, 

against  one  Jackson  for  $ ,  and  tliat  execution  issued 

thereon  from  May  to  August  term,  1857 ;  another  execution 
issued  to  November  term,  and  came  to  the  hand  of  the  wit- 
ness M'ho  testified  as  to  this  part  of  the  cause,  who  was  in- 
structed to  place  it  in  the  hand.s  of  the  defendant,  sheriff  of 
Columbus.  Witness  saw  the  defendant  a  short  time  after  the- 
17th  October,  1857,  and  tendered  him  the  execution,  to  wliich 
he  replied  that  it  was  unnecessary  to  take  it,  as  he  had  col- 
lected the  money  on  the  former  execution — had  enclosed  it  in 


434  m  THE  SUPKEME  COURT.  ^ 

Fagan  v  Williamson. 

an  envelope,  and  directed  it  to  the  clerk  of  Washington  coun- 
ty court.  He  added  that  he  handed  it  to  the  deputy  postmas- 
ter at  Whitesville,  Columbus  county,  with  instructions  to  re- 
gister it  and  forward  it  by  mail.  The  plaintiff  proved  by  the 
postmaster  at  Pl^anouth,  where  the  court  aforesaid  sits,  that 
no  registered  letter  from  Whitesville,  had  been  received  at  his 
office  for  the  clerk  of  Washington  count}^  court  between  May 
and  August  terms,  1857.  The  clerk  proved  that  no  such  ex- 
ecution or  money  had  been  returned  to  his  office. 

The  plaintiff  further  proved  that  he  had  formerly  brought 
an  action  of  debt  for  this  same  amount,  in  which  he  declared 
against  the  defendant  and  certain  others  as  sureties  on  his  of- 
ficial bond,  and  that  he  had  taken  a  nonsuit  in  that  case. 
This  suit  was  brought  after  the  return  term  of  the  second  exe- 
cution. 

The  defendant  contended — 

First.  That  a  recovery  could  not  be  had  on  this  claim  in 
this  form  of  action. 

Secondly.  That  the  former  action  of  debt  was  not  a  suffi- 
cient demand,  a  demand  being  necessary. 

Thirdly.  That  the  mailing  of  the  money  raised  a  presump- 
tion that  it  was  received  at  the  office  where  it  was  demanda- 
ble,  and  that  there  was  no  evidence  sufficient  to  overcome  the 
presumption. 

The  Judge  charged  the  jury  that  the  form  of  the  action  did 
not  preclude  a  recovery  in  this  suit ;  that  if  a  demand  was 
necessary,  they  were  at  liberty  to  find  one,  if  they  found  the 
former  suit  as  aforesaid  for  the  same  cause  of  action  and  a 
nonsuit ;  that  the  mailing  of  the  money  raised  a  presumption 
that  it  came  to  hand,  and  it  was  for  the  jury  to  say  whether 
that  presumption  was  overcome  by  the  other  evidence  in  the 
case,  and  that  if  it  was  overcome,  and  they  were  satisfied  the 
money  did  not  reach  Washington  county,  whence  the  writ  is- 
sued, they  should  find  a  verdict  for  the  plaintiff;  otherwise  for 
the  defendant.     The  defendant's  counsel  excepted. 

Verdict  and  judgment  for  plaintiff.  Appeal  by  the  defend- 
ant. 


JUNE  TERM,  1862.  435 


Fagan  v.  Williamson. 


Winston,  Jr.,  for  the  plaintiff. 
No  counsel  appeared  for  defendant  in  this  Court. 

Manly,  J.  The  judgment  ought  not  to  be  reversed  for  any 
of  the  causes  appearing  in  the  case  transmitted  to  this  Court. 

The  record  does  not  inform  us  as  to  the  ground  upon  which 
the  exception  to  the  form  of  action  is  based,  but  taking  it  to  be  as 
was  suggested  in  the  argument,  that  there  was  a  higher  securi- 
ty (that  is  the  official  bond)  by  an  action  on  which  the  sheriff 
could  be  made  to  answer  for  tlie  delinquency  complained  of,  we 
are  of  opinion  it  cannot  avail  the  defendant.  The  Legislature 
in  providing  this  higher  and  more  sure  security,  has  express- 
ly guarded  against  the  inference  that  the  action  upon  the  case, 
as  at  common  law,  was  merged  therein,  and  no  longer  to  be 
used.  This  will  be  seen  by  a  reference  to  the  Rev.  Code,  ch. 
78,  sections  1  and  2.  In  the  proviso  of  the  second  section, 
the  form  of  the  action  before  us,  is  specially  noted  and  de- 
clared to  be  still  open  to  the  citizen,  notwithstanding  the 
remedy  upon  the  bond  therein  given.  Thus,  we  think,  what- 
ever might  have  been  the  law,  without  some  saving  clause, 
(into  which  enquiry  we  do  not  now  enter,)  yet,  by  virtue  of 
such  clause,  the  action  in  question  is  clearly  open  to  resort  at 
the  election  of  persons  injured. 

The  case  states  that  an  action  of  debt  had  been  instituted 
for  the  same  cause  against  the  defendant  and  others,  and  a 
nonsuit  suffered  previously  to  the  commencement  of  this  suit, 
and  that  the  Court  below  instructed  the  j  ury  that  this,  of  it- 
self, was  a  demand.  This  is  the  subject  of  the  second  excep- 
tion. The  instruction  was  undoubtedly  correct.  It  might  be 
gravely  questioned  whether,  at  the  time,  and  under  the  cir- 
cumstances, under  which  this  action  was  brought,  a  demand 
was  at  all  necessary  to  sustain  it.  But  supposing  it  to  have 
been  necessary,  a  former  suit  for  the  same  cause  of  action  and 
a  nonsuit  would  clearly  satisfy  the  requirement ;  Zhm  v.  Mc- 
ClcUand,  4  Dev.  and  Bat.  458. 

The  instructions  in  respect  to  the  transmission  of  the  money 
by  mail,  and  the  presumption  arising  therefrom,  which  is  the 


436  m  THE  SUPKEME  COURT. 

Powell  V.  Inman. 

ground  of  the  third  exception,  does  not  furnish  a  proper  sub- 
ject of  complaint  on  the  part  of  the  appellant.  He  had  the 
benefit  of  instructions  on  this  point,  the  soundness  of  which 
by  no  possibility  could  have  wrought  him  any  injury. 

No  error  having  been  committed  in  the  case,  of  which  the 
appellant  can  justly  complain,  the  judgment  must  be  affirmed. 

Pee-Cubiam,  Judgment  affirmed. 


JOHN  G.  POWELL  &  CO.  v.  EOBERT  INMAN. 

A  bond  giren  aS  a  pretext  to  enable  one  person  to  set  up  a  claim  to  the  pro- 
perty of  another,  so  as  to  defraud  the  creditors  of  that  other,  is  void  evea 
as  between  the  parties  to  the  same. 

Action  of  debt,  tried  before  Saundeks,  J.,  at  the  Spring 
Term,  1861,  of  Columbus  Superior  Court. 

The  action  was  upon  a  bond,  executed  by  Kobert  Inman  to 
Jesse  Inman,  and  endorsed  to  the  plaintiffs.  The  defendant 
pleaded  General  issue,  Fraud,  Illegal  consideration. 

The  plaintifi's  proved  the  execution  of  the  bond  by  the  de- 
fendant and  the  endorsement  to  the  obligee,  which  was  after 
it  became  due. 

The  defendant  then  offered  the  evidence  of  the  subscribing 
witness,  who  testified  that  he  was  present  at  the  time  the  bond 
was  executed,  and  Jesse  Inman  stated  that  the  bond  was  giv- 
en^to  defraud  his  creditors,  and  that  there  were  then  execu- 
tions out  against  him  in  the  hands  of  the  sheriff ;  that  the  con- 
sideration for  the  bond  was  a  raft  of  timber,  a  quantity  of 
corn,  cows  and  calves,  about  fifteen  hundred  pounds  of  bacon, 
horse  and  buggy,  sows  and  pigs,  ox  and  cart  and  a  quantity 
of  fodder;  and  that  when  the  sherifi"  went  to  levy  on  the  pro- 
perty, it  was  to  be  claimed  by  Robert  Inman,  the  defendant ; 
but,  in  fact,  the  property  was  to  remain  in  the  possession  of 


JUNE  TEJRM,  1862.  437 

Powell  V.  Innian. 

Jesse  Inman  ;  that  the  bond  was  not  to  go  beyond  the  ditch 
near  where  they  were,  but  was  to  be  destroyed.  The  witness 
further  testified,  that  Robert  Inman  was  present  and  said 
nothing.  The  plain tifls  proved  that  the}'  had  paid  Jesse  In- 
man a  valuable  consideration  for  the  note ;  also,  that  the  pro- 
perty, above  referred  to,  remained  in  the  possession  of  Jesse 
Inman,  and  that  when  the  sheriff  of  Robeson  went  to  lev}'  on 
it  as  his  property,  Robert  Inman  claimed  it;  and  said  that  he 
had  purchased  it  from  his  brother,  Jesse. 

There  was  other  testimony  on  the  question,  of  fraud,  all  of 
which  was  submitted  to  the  jury  under  the  charge  of  the 
Court. 

His  Honor  instructed  the  jurj'  that  if  they  believed  the  de- 
clarations of  Jesse  Inman,  that  the  bond  was  given  for  the 
purposes,  and  upon  the  consideration  stated  b}'  him',  the  plain- 
tiff could  not  recover. 

The  plaintiff's  counsel  excepted  to  the  charge.  Verdict  for 
the  defendant.     Appeal  by  the  plaintiff^ 

/Shepherd,  Strcmge,  and  IF.  A.  ^V right,  for  the  plaintiff. 
Leitch  und  M.  B.  Smith,  for  the  defendant. 

•  Battle,  J.  This  case  is  brought  before  us  again,  for  the 
purpose,  as  we  are  informed,  of  having  reviewed  the  decision 
which  we  made  in  it  at  December  Terra,  1859,  (see  7  Jones 
28).  In  the  argument  now  submitted  by  the  counsel  for  the 
plaintiff,  lie  admits  the  correctness  of  the  general  principle,  that 
a  contract,  the  consideration  of  which  is  the  doing  of  an  act, 
either  malum  in  ss  or  inalum  prohibitum  is  void,  and  no  ac- 
tion at  law  can  be  sustained  upon  it.  He  also  admits  that  the 
fact  of  the  contract's  being  under  seal,  does  not  preclude  the 
illegality  of  the  consideration  from  being  enquired  into,  and 
urged  as  a  defense.  See  Broom's  Com.  91,  Law  Lib.  280,  and 
several  pages  following.  But  he  contends  that  a  bond  for  the 
payment  of  money,  tliough  made  for  the  express  purpose  of 
defrauding  the  obligor's  creditors  is  valid  as  against  him,  bjr 
force  of  the  Stat.  Eliz.  ch.  5,  sec.  2;  Rev.  Code,  ch.  60,  sec.  J, 

2 


438  IN"  THE  SUPREME  COURT. 

Powell  V.  Inman. 

By  reference  to  that  statute,  it  will  be  seen  that  bonds  are 
mentioned  along  with  several  kinds  of  conveyances  made 
with  the  intent  to  delay,  hinder  and  defraud  creditors,  which 
are  declared  to  be  utterly  void  and  of  no  effect,  only,  howev- 
er, as  against  those  persons  who  are  hindered,  delayed  and 
defrauded  of  their  debts  ;  and  it  is  inferred  that  bonds  as  well 
as  conveyances  of  property,  are  good  and  valid  against 
those  who  execute  them  in  favor  of  the  obligee  and  gran- 
tee. This  argument  confounds  the  distinction  between  the 
nature  and  effect  of  a  bond  and  an  executed  conveyance. 
The  former  is  a  chose  in  action,  which  may  require  the  aid  of 
a  court,  through  the  means  of  an  action  or  suit,  to  give  the 
obligee  the  benefit  of  it,  while  the  latter  transfers,  at  once, 
the  title  of  the  property  granted  or  sold  to  the  grantee,  or 
bargainee.  Hence,  to  the  former,  the  well-established  max- 
im of  ex  dolo  TYialo  non  oritur  actio  may  apply,  while  it  is  en- 
tirely inapplicable  to  the  latter,  which  does  not  require  the 
aid  of  a  court  to  transfer  the  property.  The  fraudulent  gran- 
tee or  bargainee  has  then  the  advantage  of  his  grantor  or  bar- 
gainor, because,  having  the  property  by  force  of  the  convey- 
ance, the  grantor  or  bargainor  will  be  met,  when  he  applies 
to  be  relieved  against  it,  with  the  objection  that  "  no  court 
will  lend  its  aid  to  a  man  who  founds  his  cause  of  action  up- 
on an  immoral  or  illegal  act ;"  Ilolmaii  v.  Johnson,  1  Cow- 
per's  Rep.  343.  The  statute  of  frauds,  13  Eliz.  in  making 
void  and  of  no  effect  conveyances  intended  to  defraud  cred- 
itors, as  to  the  creditors  only,  and  leaving  them  in  full  force 
in  other  respects  as  between  the  parties,  does  not  contravene 
that  rule.  But  if  the  statute  is  to  be  construed  as  to  its  effect 
upon  fraudulent  bonds  in  the  manner  contended  for  by  the 
plaintiff"'s  counsel,  it  will  violate  the  rule,  and  produce  the 
strange  and  unnecessary  anomaly,  that  while  the  obligee  in  a 
bond  founded  upon  the  illegal  consideration  of  compounding 
a  felony,  gaming,  usury,  restraining  trade,  restraining  mar- 
riage and  the  like,  he  may  do  so  if  the  consideration  were 
that  of  a  most  gross  and  outrageous  attempt  to  cheat  and  de- 
fraud creditors.     But  the  words  of  the  statute  may  be  satis- 


JUNE  TERM,  1862.  •  43^ 

Pritchard  v.  Oldham. 

fied  without  the  necessity  of  adopting  any  such  construction. 
A  voluntary  bond,  executed  without  any  actual  intent  to 
defraud  creditors,  may  be  avoided  by  them  under  the  statute, 
if  such  an  avoidance  be  necessary  to  secure  their  debts,  but  as 
between  the  parties  the  statute  leaves  it  still  in  force.  By 
giving  to  the  statute  such  an  operation  and  no  more,  the 
very  salutary  maxim,  to  which  we  have  referred,  of  ex  dolo 
malo  nori  oritur  actio  will  be  left  in  its  full  integrity,  to  pre- 
vent a  recovery  by  the  obligee  of  a  bond  conceived  and  exe- 
cuted by  the  parties  with  the  actual  intent  to  hinder,  delay 
and  defraud  the  creditors  of  the  obligor. 

That  the  distinction  which  we  have  endeavored  to  point 
out  between  bonds  and  executed  conveyances  does  exists,  is, 
as  we  think,  established  by  adjudicated  cases.  That  of  Ro- 
berts V.  JRoherts,  2  Barn,  and  Aid  366,  (4  Eng.  C.  Law  Rep. 
545,)  cited  by  the  plaintiff's  counsel,  and  all  those  referred  to 
by  Roberts  in  his  work  on  Fraudulent  Conveyances,  which 
were  held  to  be  valid  as  between  the  parties,  are  cases  of  ex- 
ecuted conveyances,  while  not  a  single  instance  of  a  bond 
made  for  the  express  purpose  of  defrauding  creditors  has,  to 
our  knowledge,  been  upheld  as  good  between  the  obligor  and 
obligee. 

The  judgment  of  the  Court  below  being  in  accordance  with 
the  views  which  we  have  now  expressed,  must  be  affirmed. 

Per  Cckiam,  Judgment  affirmed. 


EASOM  PRITCHARD  d  al  v.  ALLEN  OLDHAM. 

Where  a  person  was  appointed  by  court  a  commissioner  to  sell  a  slave  for 
partition,  and  the  surety  taken  by  him,  although  reputed  good  at  the  time 
©f  the  sale,  turned  out  to  be  insolvent  before  the  note  could  be  collected, 
it  was  held  that  an  attachment  for  a  contempt  for  not  paying  the  money 
into  the  court,  under  a  rule  for  that  purpose,  was  not  a  proper  remedy,  if 
ndeed,  there  wer  e  any. 


UO  -IN  THE  SUPKEME  COUKT. 

Pritchard  v.  Oldham. 

This  was  a  kule  on  the  defendant  to  show  eanse  why  an  at- 
tachment for  a  contempt,  should  not  be  issued  against  him, 
which  came  np  from  the  County  Court  of  Orange,  and  was 
heard  before  Howard,  J. 

The  defendant  had  been  appointed  a  commissioner  by  the 
County  Court  of  Orange,  to  sell  for  partition,  a  certain  negro 
slave  under  certain  proceedings  had  in  that  Court,  in  the 
names  of  the  plaintiffs.  The  slave  was  offered  for  sale,  and 
first  bid  off  by  Easom  Pritchard,  one  of  the  petitioners  for  the 
sale,  but  he  failing  to  give  bond  for  the  whole  sum  bid  by 
him,  the  slave  was  put  up  again  and  cried  off  to  one  Jolly  at 
the  price  of  $1282.  The  case  states  that  a  respectable  gentle- 
man told  the  defendant  that  Jolly  was  totally  insolvent ;  that 
after  he  bid  oft' the  slave,  he.  Jolly,  proposed  to  take  the  slave 
to  Pittsborough,  where  he  lived,  and  in  the  next  week,  if  he 
would  come  to  that  place,  he  would  give  him  a  bond  with 
John  A.  Hanks  and  Wesley  Hanks.  The  defendant  enquired 
of  Dr.  Davis  whether  a  note  given  by  Joll}^  and  the  two 
Hankses  would  be  good,-  who  replied  that  it  wauld  be  perfect- 
ly so ;  thereupon,  the  defendant  permitted  Jolly  to  take  the 
slave  to  Pittsborough.  During  the  next  week,  defendant 
went  to  Pittsborough,  and  took  the  bond  of  Jolly  and  John 
A.  Hanks  as  principals,  and  Wesley  Hanks,  as  surety.  The 
case  further  states  that  Jolly  and  John  Hanks  were  partners 
in  merchandising  and  trading  generally,  and  now  and  then 
negroes  purchased  out  of  the  State  for  sale.  The  general 
purchased  a  negro  or  two  on  speculation,  sending  the 
reputation  of  Jolly,  at  the  time,  was  that  he  was  insolvent ; 
that  of  John  A.  Hanks  was,  that  though  he  had  property 
about  him,  he  was  greatly  embarrassed  and  doubtful,  but  as 
to  Wesley  lianks,  that  he  was  worth  $10,000  or  $12,000, 
principally  in  real  estate ;  that  he  was  economical  and  dis- 
creet, and  as  safe  as  any  one  for  the  amount  of  the  note.  A 
week  or  two  after  the  note  was  given.  Jolly  carried  the 
slave  out  of  the  State  and  sold  him.  The  note  was,  on  falling 
due,  put  in  suit,  and  a  judgment  obtained  without  delay,  but 
the  parties  had  all,  in  the  meantime,  become  insolvent,  and 


JUNE  TERM,  1862.  441 


Pritchard  v.  Oldham. 


the  execution  returned  unsatisfied.  This  matter  was  specially 
reported  by  the  defendant  to  the  County  Court  of  Orange,  and 
upon  a  notice  to  that  effect,  duly  served  on  the  defendant,  a 
'rule  was  obtained  and  made  absolute  for  him  to  pay  into  tlie 
office  of  the  clerk  of  Orange  County  Court  the  amount  of  the 
bond,  $1282,  with  interest,  or  that  an  attachment  for  a  con- 
tempt should  be  issued  against  him.  From  this  ruling  the 
defendant  appealed  to  the  Superior  Court,  where  tlie  order 
below  was  reversed,  and  the  plaintiffs  appealed  to  this  Court. 

Gr-aham^  for  the  plaintiffs. 

Phillips  and  Norwood^  for  the  defendant. 

Battle,  J.  It  cannot  be  doubted  that  a  person  appointed 
by  a  decretal  order  of  a  court,  in  the  progress  of  a  cause,  a 
commissioner  to  sell  property,  and  to  make  a  report  thereof 
to  the  court,  is  either  an  officer  or  a  person  against  whom,  in 
a  proper  case,  an  attachment  may  issue  under  the  provisions 
of  the  Eev.  Code,  ch.  31,  sec.  117.  If,  then,  the  defendant  in 
the  present  case,  had  collected  the  money  for  which  the  slave 
mentioned  had  been  sold,  and  had  disobeyed  an  order  of  the 
Court  to  pay  it  into  the  clerk's  office,  an  attachment  against 
him  would  have  been  proper,  because  a  wilful  disobedience 
to  such  order  would  have  been  a  contempt  of  the  Court.  But 
as  he  had  not  collected  the  money  for  the  reasons  stated  in  his 
second  report,  was  there  any  thing  of  criminality  or  even  of 
negligence  or  unskilfulness  in  the  discharge  of  the  duties  of 
his  appointment,  to  justify  the  Court  in  issuing  the  summary 
process  of  attachmant  against  him  ?  We  think  not.  He  was 
ordered  to  sell  the  slave  in  question  on  a  credit  of  six  months, 
taking  a  bond  and  good-  security  for  the  price ;  he  did  right 
in  offering  tlie  slave  for  sale  again,  after  Pritchard  had  refused 
to  comply  with  the  terms  of  the  sale.  He  did  wrong,  and 
ran  a  risk  of  loss  b}'-  permitting  Jolly  to  take  the  slave  to 
Pittsborough  before  he  had  given  bond  and  security  for  the 
purchase-money ;  but  the  wrong  was  repaired  as  soon  as  tlie 
bond  with  security  was  given  ;  for  the  matter  then  stood  as  it 


442  IN  THE  SUPKEME  COUKT. 

Pritchard  v.  Oldham. 

would  have  done  had  the  transaction  been  completed  on  the 
day  of  sale.  The  sole  enquiry  then,  is,  was  it  negligence  in  the 
commissioner  to  take  the  bond  which  he  did,  as  security  for 
the  price  of  the  negro  ?  In  the  case  of  Davis  v.  Marcom,  4 
Jones'  Eq.  189,  we  held  that  where  an  administrator  was  or- 
dered by  the  court  to  sell  slaves  for  distribution,  on  a  credit, 
taking  bond  with  sureties  for  the  purchase-money,  he  was 
only  responsible,  in  respect  to  the  sufficiency  of  the  bond,  for 
wilfully  or  negligently  taking  such  sureties  as  were  not  good, 
or  such  as  he  had  not  good  reason  to  believe  were  sufficient. 
As  we  are  not  aware  of  any  rule  of  law  which  holds  a  com- 
missioner appointed  by  the  court  to  sell  property,  to  a  stricter 
accountability  than  what  is  applicable  to  administrators,  that 
case  must  govern  the  present.  Here,  the  commissioner  had 
very  good  reason  to  believe  that  the  bond  which  he  took  was 
sufficient.  Dr.  Davis,  a  respectable  gentleman,  who  resided 
in  the  neighborhood  of  the  obligors,  said  the  bond  would  be 
good,  and  it  was  proved  that  at  the  time  when  it  was  given, 
though  one  of  the  principals  was  reputed  to  be  insolvent,  and 
the  other  doubtful,  yet  the  surety  was  worth  $10,000  or  $12,- 
000,  principally  in  real  estate,  and  was  regarded  as  economi- 
cal and  discreet,  and  as  good  as  any  person  for  the  amount  of 
the  bond. 

Under  these  circumstances,  it  may  well  be  doubted  wheth- 
er tlie  defendant  can  be  held  responsible  for  the  loss  of  the 
purchase-money  of  the  slave  in  any  form  of  action,  but  cer- 
tainly he  cannot  be  so  held  in  a  mode  of  proceeding  which  is 
somewhat  criminal  in  its  nature,  and  which,  it  would  seem, 
therefore,  ought  not  to  be  adopted  unless  there  were  some- 
thing of  criminality  in  the  person  against  whom  it  is  directed. 
See  4  Black.  Com.  284,  and  the  referen-ces  contained  in  notes  T 
and  8  of  Chitty's  Edition. 

The  order  of  the  Superior  Court,  from  which  the  appeal  is 
taken,  is  affirmed. 

Pee  Cukiam,  Judgment  affirmed. 


JUNE  TEEM,  1862.  443 


State  V.  Brown. 


STATE  V.  ENOCH  S.  BROWN. 

An  indictment,  charging  the  stealing  of  a  bank-note  of  a  certain  denomina- 
tion and  value,  without  setting  forth  by  what  authority  such  note  was  is- 
sued, is  not  sufficient  to  authorise  judgment  on  a  conviction. 

This  was  an  indictment  for  stealing  a  bank-note,  tried  before 
Howard,  J.,  at  the  Fall  Terra,  1861,  of  Montgomery  Superior 
Court. 

The  indictment  is  as  follows  : 

"The  jurors,  &c.,  present,  that  Enoch  Brown,  late,  &c.,  on 
ifec,  at  and  in,  &c.,  one  bank-note,  for  the  payment  of  twenty 
dollars,  and  of  the  value  of  twenty  dollars,  the  property  of 
one  Benjamin  F.  Steed,  then  and  there  being  found,  feloni- 
ously did  steal,  take  and  carry  awa}^,  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided,  and  against  the 
peace  and  dignity  of  the  State." 

On  conviction,  under  this  indictn:}ent,  the  defendant's  coun- 
sel moved  for  an  arrest  of  judgment,  which  was  ordered  by 
the  Court,  whereupon  the  solicitor,  for  the  State,  appealed. 

Attorney  Generaly  for  the  State. 

]^o  counsel  appeared  for  defendant  in  this  Court. 

Manly,  J.  Bank  notes  not  having  any  intrinsic  value,  are 
not  the  subject  of  larceny  at  common  law;  Cayle's  case,  8 
Co.  33,  1  Hawk.  ch.  33,  sec.  35 ;  but  have  been  made  so  by 
the  legislation  of  most  commercial  nations. 

The  statute  on  tins  subject,  now  in  force  in  North  Carolina, 
is  found  in  Rev.  Code,  chap.  34,  sec.  20  ;  from  which  it  will 
appear  that  only  those  bank-notes  that  have  been  issued  by 
corporations  of  the  State,  or  some  other  of  the  United  States, 
are  now  the  subject  of  larceny  within  our  State  courts. 

Whether  this  limited  application  of  the  law  of  larceny  to 
bank-notes,  may  not  have  suffered  still  further  restriction  by 
the  political  condition  of  the  country,  and  by  the  act  of  the  Le- 
gislature of  1861-'2,  ex.  session,  ch.  23,  is  not  in  this  case  ma- 
terial to  enquire. 


444  IN  THE  SUPREME  COURT. 

McLean  v.  Buchanan. 

The  bill  of  indictment  chcarges  the  thing  stolen  to  be  a  hanh- 
iwte  without  further  description,  while  bank-notes  of  cer- 
tain classes,  to  the  exclusion  of  others,  are  only  the  subject  of 
larceny.  This  is  not  such  a  description  as  will  enable  the 
Court  to  see  that  a  felony,  under  our  law,  has  been  com- 
mitted. It  may  have  been  a  bank-note  as  well  without  the 
purview  of  the  statute  as  within  ;  ^nd  as  the  rule  of  construc- 
tion is,  that  every  conclusion  will  be  made  against  the  bill, 
which  has  not  been  excluded  by  the  pleader,  either  expressly 
or  by  necessary  implication,  we  are  bound  to  hold  it  to  be  a 
note  of  some  bank  not  embraced  by  the  statute.  This  is  sim- 
ply requiring  certainty  to  a  certain  intent  in  general^  which 
is  the  rule  applicable  to  indictments. 

There  could  be  no  judgment  against  the  defendant  upon 
the  verdict,  under  this  indictment,  and  it  was,  therefore,  pro- 
perly arrested  in  the  Court  below. 
• 

Pek  Cukiam,  Judgment  affirmed. 


State  on  relation  0/ JOHN  McLEAN  v.  WILLIAM  BUCHANAN  ei  al 

The  ceremony  of  acknowledgement  in  open  court,  and  registration,  are  not 
essential  to  the  validity  of  a  sheriff's  bond. 

"Where  a  debtor  lived  in  one  county,  and  had  places  of  business  in  two  other 
counties  adjoining,  and  it  appeared  that  a  sheriff  who  acted  as  a  collect- 
ing officer,  went  three  times  during  three  mouths  to  such  residence,  at  the 
end  of  which  time  the  debtor  became  insolvent,  although  it  appeared  that 
the  debtor  was  most  usually  absent  from  home  during  this  time,  it  was  held 
that  the  officer  was  guilty  of  such  laches  as  to  render  him  and  his  sureties 
liable  on  his  official  bond. 

Action  of  debt,  on  official  bond  of  a  sheriff,  tried  before 
Saundeks,  J.,  at  the  Spring  Term,  1861,  of  Richmond  Supe- 
rior Court. 

The  breaches  assigned,  were  for  failing  to  collect,  and  for 


JUNE  TERM,  1862.  445 


McLean  v.  Buchanan. 


collecting  and  failing  to  pay  over  the  money  on  a  note  put 
into  his  hands  on  one  David  A.  Boyd,  for  collection. 

The  plaintiff  introduced  a  paper-writing  which  was  on  file  in 
the  office  of  the  County  Court  of*Richmond  county,  as  tiie  official 
bond  of  the  sheriff  for  1S56,  to  which  B.  8.  JIcDonald  \s  a 
subscribing  witness.  He  testified  that  in  his  office,  outside  of 
the  court  room,  on  the  day  on  which  the  bond  purports  to 
liave  been  executed,  all  the  defendants  either  signed  the  bond 
or  acknowledged  their  signatures  in  iiis  presence,  and  he  signed 
it  as  a  witness,  but  they  did  not  acknowledge  it  in  opeu 
Court,  and  further,  that  he  was  not  clerk  of  the  County  Court 
at  that  time. 

Louis  II.  Wehh  was  then  introduced,  who  testified  that  at 
October  term,  1856,  he  was  clerk  of  the  County  Court  of  Rich- 
mond county,  and  that  during  that  term,  the  bond  in  question 
was  oftered  by  William  Buchanan  as  his  official  bond  as  sher- 
iff, and  accepted  by  the  Court,  but  that  no  one  of  the  sureties 
therein  named,  either  signed  the  bond  or  acknowledged  it  in 
open  Court.  His  Honor  decided  that  this  proof  established 
the  paper  in  question  to  be  the  official  bond  of  the  defendant 
as  sheriff'  of  Richmond,  and  allowed  the  same  to  be  read  ;  for 
which  ruling,  the  defendant's  counsel  excepted. 

The  claim  above  described,  was  put  into  the  hands  of  an 
acting  deput}'^  of  the  defendant,  Buchanan,  on  the  4th  of  De- 
cember, 1856,  and  it  was  proved  that  Boyd,  the  debtor,  was 
in  possession  of  sufficient  property  to  satisfy  it ;  that  tiie  said 
deputy,  on  or  about  the  15th  of  December,  in  that  year,  went 
to  the  usual  place  of  Boyd's  residence  to  serve  a  warrant  on 
liim,  but  could  not  find  him  ;  also,  that  he  went  to  the  same 
place  two  other  times  between  that  time  and  the  27th  of  Feb- 
ruary, 1857,  on  neither  of  which  occasions  could  he  find  him. 
TT'^.  31.  Bost  testified  tliat  he  was  an  officer,  and  lived  with- 
in two  miles  of  Boyd  ;  that  he  had  claims  in  his  hands  against 
him  for  collection  between  the  4th  "bf  December  1856  and  27th 
of  February,  1857,  and  tliat  he  went  to  his  usual  place  of  re- 
sidence several  times  without  finding  hiin ;  that  during  tliat 
time  Boyd  had  places  of  business  in  the  counties  of  Mont- 


Ue  IN  THE  SUPREME  COURT. 

McLean  v.  Buchanan. 

goraeiy,  Cumberland  and  Anson ;  that  his  residence  was  in 
Richmond  county,  near  the  line  between  that  county  and 
Montgomery,  and  that  he  was,  during  that  time,  most  fre- 
quently absent  from  home. 

it  was  also  proved,  that  on  the  27th  Februar3^,  1857,  Boyd 
conveyed  all  his  propertj-  by  a  deed  of  trust  to  satisfy  other 
claims. 

His  Honor  charged  the  jury  that  if  they  believed  this  testi- 
mony, it  established  such  laches  in  the  deputy  as  rendered  the 
sheriff  and  his  sureties  liable  on  the  bond  in  question. 

Defendants'  counsel  again  excepted. 

Verdict  for  the  plaintiff.  Judgment  and  appeal  by  the  de- 
fendants. 

McDonald  and  Shepherd  for  the  plaintiff. 
Leitch,  for  the  defendants. 

Manly,  J.  Two  exceptions  were  taken  on  the  trial  below 
to  the  rulings  of  the  Court,  neither  of  which  can  avail  the  ap- 
pellant. 

No  particular  formalities  are  prescribed  by  law  for  tb,e  exe- 
cution of  the  sheriff's  bond.  If  a  bond,  executed  according 
to  the  requirements  of  the  common  law,  be  accepted  by  the 
court,  and  the  sheriff'  thereupon  inducted  into  or  continued 
in  office,  the  bond  is  obligatory  on  the  parties,  although  the 
duty  of  the  court  to  have  it  acknowledged  and  recorded,  be 
omitted.  The  ceremon}^  of  acknowledgement,  in  open  court, 
and  the  recording  of  the  bond,  are  important  provisions  of 
law  for  authenticating  the  execution  of  the  instrument,  and 
preserving  evidence  of  its  existence  and  contents,  but  are  not 
essential  to  its  validity  as  an  office  bond.  See  Revised  Code, 
ch.  105,  sec.  13,  and  ch,  44.  sec  8.  The  signing,  sealing  and 
delivering  of  the  bond,  according  to  the  requirements  of  the 
common  law,  were  proved  Upon  the  trial.  It  is  nowhere  pro- 
vided that  registration  is  necessary  to  make  it  admissible 
in  evidence,  and  whether,  therefore,  it  was  a  bond  taken  in 
conformity  with  the  statute,  seems  not  to  have  been  material. 


JUNE  TEEM,  1862.  44T 

Parker  v.  Ricks. 

It  was  admissible  and  obligatory  between  the  parties  as  a  com- 
mon law  bond,  and  no  rule  of  law  appertaining  to  an  action 
upon  it,  as  such,  has  been  violated.  So,  in  whatsoever  char- 
acter it  be  regarded,  no  error  has  been  committed  to  the  pre- 
judice of  the  defendant. 

We  full}'  concnr  with  his  Honor  below  in  the  view  he  took 
of  the  question  of  laches.  If  seems,  from  the  statement  of 
the  case,  that  the  debtor,  Boyd,  had  sufficient  means  to  satisfy 
the  demand,  down  to  the  time  of  making  a  general  assign- 
ment;  viz.  on  the  27th  of  February,  1857;  the  claim  waaput 
into  the  hands  of  the  defendant's  deputy  on  the  ttth  of  De- 
cember, 1856.  The  deputy,  with  a  view  or  executing  process, 
on  the  debtor,  visited  his  place  of  residence  on  the  15th  of 
December,  and  on  two  other  occasions,  between  that  and  the 
27th  of  February,  1857,  but  failed  to  find  him  at  home  on  any 
of  the  occasions.  The  debtor  resided  in  Richmond,  but  had 
three  other  places  of  business  in  adjoining  counties,  and  spent 
the  greater  part  of  his  time  away  from  his  place  of  residence. 
It  does  not  appear  that  the  officer  made  any  effort  to  find  the 
debtor,  except  the  three  visits  stated,  and  no  process  was  ever 
executed,  nor  other  means  used  to  collect  the  debt  from  the 
4th  of  December  to  the  27th  of  February,  a  period  of  nearly 
three  months.  This  was  not  ordinar}^  care  and  diligence. — 
For  aught  that  appears,  in  the  facts  of  the  case,  due  care  and 
watchfulness,  would  have  secured  a  different  result. 

Per  Curiam,  Judgment  affirmed. 


SABRA  J.  PARKER  v.  WILLIE  B.  RICKS. 

"Where  A  handed  over  a  sum  of  money  to  B,  for  the  use  of  C,  and  took  from. 
B  a  certificate,  in  writing,  expressing  that  it  was  the  sum  given  to  C  in  A's 
will,  and  obliging  B  to  pay  the  interest  annually  to  C,  it  waa  held  that  A 
bad  no  right  to  demand  and  recover  the  money  from  B. 


448  IN  THE  SUPKEME  COUET. 

Parker  v.  Ricks. 

Action  of  debt,  tried  before  Bailey,  J.,  at  the  Spring  Term, 
1861,  of  Edgecombe  Superior  Court. 

*  CASE   AGREED. 

The  action  was  brought  on  the  following  article  of  writing, 
given  by  the  defendant  to  the  plaintiif : 

"  This  is  to  certify,  that  Mrs.  S.  J.  Parker  has  placed  in  my 
hands  tiie  sura  of  one  thousand  dollars,  for  the  use  and  bene- 
fit of  Miss  C.  P.  Battle,  during  her  life,  and  also  after  her 
death,  to  remain  in  my  hands  until  called  for  by  the  said  C. 
P.  Ba,ttle,  the  interest  to  be  paid  annually  to  the  said  0.  P. 
Battle,  for  her  own  use,  this  being  the  sum  given  in  her  last 
will  and  testament  to  C.  P.  Battle.     May  31st,  1856. 

(Signed,)  W.  B.  Ricks." 

On  which  paper,  the  following  credit  is  endorsed  :  "  May 
31st,  1857,  Received  sixty  dollars  in  full  for  the  interest  up 
to  day  and  date  above  written." 

It  is  admitted  that  plaintiif  demanded  the  sum  above  men- 
tioned, ($1000,)  before  suit  brought ;  also,  that  C.  P.  Battle 
was  living  when  the  action  was  commenced. 

It  is  agreed,  that  if  the  Court  should  be  of  opinion  with  the 
plaintiff  on  the  case  agreed,  judgment  should  be  rendered  in 
her  favor  for  the  sum  above  mentioned,  with  interest  from 
81st  of  May,  1858,  otherwise  for  the  defendant.  The  Court 
gave  judgment  of  nonsuit,  and  plaintiff  appealed. 

H.  F.  Moore.,  for  plaintiff. 
Strong^  for  the  defendant. 

Manly,  J.  "We  can  see  no  reason  for  reversing  the  judg- 
ment rendered  in  the  Court  below.  Indeed,  the  case  seems 
to  us  so  entirely  free  from  any  question,  that  we  regret  the 
appellant  has  not  furnished  us  with  the  grounds  of  her  appeal. 

The  certificate,  under  date  of  21st  of  May,  1856,  is  evidence 
of  a  purpose,  on  the  part  of  the  plaintiff,  to  set  apart  the  sum 
of  money,  therein  mentioned,  for  the  use  of  Miss  Battle,  abso- 
lutely ;  the  words  are  plainly  such  as  would  be  used  between 
persons  making  a  voluntary  and  unconditional  transfer  of  pro- 


JUNE  TERM,  1862.  449 

Dixon  V.  Warters. 

perty  from  one  to  the  other.  This  is  the  definition  of  a  gift. 
A  gift  is  no  more  revocable,  in  its  nature,  than  a  convey- 
ance or  transfer  of  property  in  other  modes.  Tlie  possession 
being  given  with  the  intent  to  part  with  the  'p^'0])erty  in  the 
thing,  the  right  of  dominion  for  all  purposes  goes  with  it. 
This  is  too  plain  to  admit  a  difi'erence  of  opinion.  The  fact 
disclosed  by  the  instrument  of  writing,  t]iat  the  money,  in 
question,  was  the  sum  given  to  Miss  Battle,  in  the  will  of  the 
plaintiff,  does  not  affect  tlie  case.  The  donor  could  make  a 
gift  of  tlie  money  in  presently  notwithstanding  the  provision 
in  her  will.  The  will  being  ambulatory  and  revocable,  either 
in  wliole  or  in  part,  it  was  competent  for  Mrs.  Parker,  in  her 
life-time,  to  make  any  disposition  of  the  money  which  she 
might  think  proper.  Such  disposition  would  be  obligatory, 
and  the  legacy  be  adeemed.  The  putting  the  money  in  the 
hands  of  a  trustee,  during  the  life  of  the  donor,  does  not  alter 
the  irrevocable  nature  of  tlie  transaction.  It  might  answer 
the  purpose  of  securing  more  certainly  the  enjoyment  of  her 
bounty  to  the  object  of  it,  but  cannot  operate  to  impair  it. 
The  recall  of  gifts,  once  validly  made,  is  not  among  the  re- 
sources of  those  who  may  be  excited  by  passion,  or  seized 
with  an  extraordinary  spirit  of  gain. 

Per  Curiam,  Judgment  affirmed. 


EICHARD  DIXON  v.  JAMES  R.  WARTERS. 

A  report  by  a  commissioner,  in  equity,  dividing  slaves  among  tenants  in 
common,  followed  by  a  decree  confirming  the  same,  passes  the  right  of 
property  from  the  date  of  the  report,  and  will  enable  a  party,  acquirmg 
such  right,  to  maintain  trover  for  a  conversion  between  the  date  of  such 
report  and  the  final  decree. 

Held  further^  that  all  the  parties  to  a  suit  for  the  partition  of  property  arc  es- 
topped to  deny  the  right  of  their  lellow-takers  under  such  decree. 


4^0  IN"  THE  SUPREME  COURT. 

Dixon  V.  Warters. 

Action  of  tkover  for  the  conversion  of  a  female  slave,  tried 
before  Osborne,  J.,  at  the  Spring  Term,  1861,  of  Greene  Su- 
periorOourt. 

Benajah  Dixon,  by  his  last  will  and  testament,  gave  all  his 
property  to  his  wife,  Mary,  to  divide  among  his  children,  and 
it  is  admitted  that  the  slave,  in  question,  was  a  part  of 
that  property.  Mary,  the  widow,  under  the  provision  of 
the  will,  above  mentioned,  divided  the  estate,  consisting  of 
slaves,  money,  &c.,  among  the  several  children  of  the  said 
Benajah,  under  which  division,  the  slave  in  question,  was,  by 
deed,  assigned  to  the  defendant's  wife ;  but  after  Mrs.  Dix^ 
on's  death,  a  bill  in  equity  was  filed  by  Robert  Dixon  and  oth- 
ers, children  of  the  same  Benajah,  against  the  defendant  and 
his  wife,  who  was  one  of  the  said  children,  and  other  chil- 
of  the  same,  to  set  aside  the  division  that  had  been  made  by 
Mrs.  Dixon  in  her  life-time,  on  the  ground,  that  it  was 
unequal  between  the  children.  The  defendant  and  his 
wife  were  regularly  made  parties  to  this  suit.  Under  an 
order  of  the  Court,  commissioners  were  appointed  to  di- 
vide the  said  property,  and  it  was  ordered  that  the  slaves 
should  all  be  brought  forward  for  that  purpose.  This  was 
done,  and  the  slave,  in  question,  in  the  new  apportion- 
ment was  assigned  to  the  plaintiff.  The  report  of  the 
commissioners  was  made  to  the  Court  and  confirmed.  After 
the  apportionment  was  made,  but  before  the  term  of  the  Court, 
at  which  the  report  was  confirmed,  the  defendant  sold  the 
slave  for  the  purpose  of  defeating  the  plaintiff's  claim. 

There  was  evidence  of  a  demand  and  refusal.  The  Court 
was  of  opinion,  and  instructed  the  jury,  that  the  defendant  was 
estopped  by  the  proceedings  in  the  Court  of  Equity,  and  that 
on  the  testimony  offered,  the  plaintiff  was  entitled  to  recover. 
Defendant's  counsel  excepted. 

No  counsel  appeared  for  the  plaintiff  in  this  Court. 
J.  W.  Bryan  and  MoRae^  for  the  defendant. 

Manly,  J.,    It  will  be  seen  by  reference  to  the  case  trans- 


JUNE  TEEM,  1862.  451 

Dixon  V.  Warlers. 

mitted  to  this  Court,  and  to  the  papers  therein  referred  to, 
that  a  controversy  in  relation  to  the  division  of  the  estate  of 
Benajah  Dixon  arose  among  the  legatees,  which  was  settled 
by  a  bill  in  equity.  To  this  bill,  both  the  plaintiff  and  de- 
fendant were  parties  as  legatees.  The  slave,  in  question,  had 
been  a  part  of  the  estate  of  the  said  Benajah,  and  was  decreed, 
upon  the  final  hearing  of  the  bill,  to  belong  to  the  plaintiff. 
The  parties  are'^unqueslionabl}''  estopped  by  the  decree.  The 
rights  of  property,  as  declared  under  it,  are  conclusive  upon 
them,  until  it  is  rev evsed;  ^^  res  adjudicaico  est,  et  mte7'est  rei- 
2)ubUc(B  ut  finis  sit  litiumP 

We  do  not  now  enter  into  any  examination  of  the  justice 
and  propriety  of  the  proceedings  and  decree  in  equit}^  These 
cannot  be  enquired  into  in  this  action,  as  upon  a  bill  of  re- 
view. 

The  other  point,  raised  by  the  case,  is,  whether  the  action 
was  sustained  by  proper  proof  of  a  conversion.  It  seems  af- 
ter the  division  of  the  slaves  was  made  by  the  commissioners  un- 
der the  decree,  and  after  the  same  was  reported  to  the  Court, 
but  before  the  confirmation  thereof,  the  defendant  refused  to 
deliver  up  the  slave  upon  demand ;  and  with  a  view  to  defeat 
the  plaintiff's  claim,  sold  her.  This  was  unquestionably  a 
conversion  as  against  him  who  had  the  right  of  property,  and 
the  consequent  right  of  possession  at  the  time,  and  the  question 
resolves  itself  into  this :  was  the  plaintiff  vested  with  these 
rights  ?     We  think  he  was. 

Where  a  decree  or  judgment  of  Court  is  rendered,  declar- 
ing rights  of  property  in  tenants  in  common  of  things  capa- 
ble of  division  and  a  partition  is  ordered,  made  and  reported, 
an  inchoate  right  of  property  is  raised,  which  the  subsequent 
judgment  of  confirmation  perfects.  In  such  case,  the  title  has 
relation  back  to  the  division,  and  starts  from  that  time;  in 
like  manner  as  the  right  of  property  in  an  administrator  is 
held  to  relate  back  to  the  death  of  the  intestate,  for  the  more 
complete  protection  of  estates.    There  is  no  error. 

Per  Curiam,  Judgment  affirmed. 


452  m  THE  SUPREME  COURT. 


Parker  v.  Richardson. 


SAMUEL  PARKER  v.  PURDIE  RICHARDSON,  Executor. 

In  an  action  on  a  covenant  for  quiet  enjoyment,  it  is  no  defence  that  the  cov- 
enantor had  a  life-eslate  in  the  land  at  the  time  of  making  the  deed,  if  such 
life-estate  befallen  in,  and  the  covenantee  has  been  evicted  by  title  paramount. 

( Wilder  v.  Ireland,  3   Jones'  Rep,  S5,  commented  on  and  distinguished  from 

this  case.) 

*  ■   • 

Action  of  covenant,  tried  before  Howard,  J.,  at  Fall  Term, 
1861,  of  Harnett  Superior  Court. 

The  action  was  brought  on  a  covenant  of  quiet  enjoyment, 
which  IS  contained  in  a  deed  to  plaintiff  from  the  defendant's 
testator,  one  Haines  Richardson,  and  is  in  the  usual  form. 

The  land  described  in  the  deed  had  belonged  to  one  Wil- 
liam Smith,  from  whom  it  descended  to  his  daughter,  Flora 
Ann,  who  intermarried  with  the  said  Haines,  the  testator.  He, 
(Haines  Richardson,)  took  possession  of  the  land  in  question, 
and  conveyed  it  in  fee  simple  to  the  plaintiff  by  the  deed 
above  set  forth,  containing  the  covenant  sued  on,  and  he  en- 
tered into  possession  under  it,  and  held  it  for  several  ^^ears. — 
Haines  Richardson  had  issue  of  the  marriage  with  Flora  Ann, 
to  wit,  one  William  S.  Richardson.  She  and  her  husband 
both  died,  and  the  said  William  S.  then  demanded  the  premis- 
es, and  having  instituted  an  action  of  ejectment  "against  the 
plaintiff,  recovered  the  same  upon  his  paramount  title,  and 
the  plaintiff  was  turned  out  of  possession  by  a  writ  issu- 
ing on  such  judgment. 

The  defendant  contended  that  inasmuch  as  Haines  Rich- 
ardson had  a  life-estate  in  the  land  described  in  his  deed,  by 
the  curtesy  at  the  time  he  made  his  conveyance,  although 
there  was  a  defect  in  the  remainder,  there  was  no  breach  of 
the  covenant. 

There  was  a  verdict  by  consent  for  the  purchase-money  and 
interest,  also  for  the  costs  of  the  suit  in  ejectment  by  which 
the  plaintiff  was  evicted,  subject  to  the  opinion  of  the  Court 
on  the  point  of  law  raised  by  the  defendant's  counsel,  with 
leave  to  set  it  aside  in  case  he  should  be  of  opinion  against  the 


JUNE  TEUM,  1862.  453 

Thompson  v.  Andrews. 

plaintiff.     On  consideration  of  the  point  reserved,  the  Court 
gave  judgment  for  the  plaintiff,  and  the  defendant  appealed. 

J.  II.  Bryai^  Neill  McKay  and  Btixton,  for  the  plaintiff. 
Strange,  for  the  defendant. 

Pearson,  C.  J.  There  is  no  ground  on  which  the  correct- 
ness of  the  conclusion  of  his  Honor,  in  the  Court  below,  can 
be  drawn  in  question. 

It  was  said  at  the  bar,  that  the  counsel  of  the  defendant 
had,  on  the  trial  below,  relied  on  the  case  of  Wilder  v.  Ire- 
land, 8  Jones,  85. 

In  that  case,  the  life-estate  was  outstanding ;  in  this  case, 
the  life-estate  had  fallen  in,  and  the  remainderman  had  made 
an  eviction  by  a  recovery  in  ejectment,  and  a  writ  of  posses- 
sion. The  distinction  is  too  plain  to  admit  of  further  expla- 
nation.    There  is  no  error. 

Per  Curiam,  Judgment  affirmed. 


DANIEL  P.  THOMPSON  v.  JOHN  ANDREWS. 

Where  a  person  bid  off  a  parcel  ofAvheat  at  an  auction  sale,  and  another  per- 
son came  forward  and  gave  his  note  for  it,  in  compliance  with  the  terms  of 
the  sale,  it  was  properly  left  to  the  jury  to  determine  whether  the  latter 
intended  to  become  the  purchaser,  or  to  become  the  surety  of  the  bidder. 

In  order  to  constitute  a  pledge,  there  must  be  evidence  that  the  property  was 
delivered  for  that  purpose  to  the  pawnee. 

Action,  of  trover,  tried  before  Bailey,  J.,  at  the  Fall  Term, 
1861,  of  Orange  Superior  Court. 

Smith,  the  administrator  of  one  Minnis,  made  a  sale,  and 
cried  off  to  Henry  Pickhard  a  quantity  of  wheat  standing  in 
the  field  unharvested.     Pickard  named  the  plaintiff  as  his 

3 


454  m  THR  SUPEEME  COURT. 

Thompson  v.  Andrews. 

proposed  security  to  a  note  he  was  required,  by  the  terms  of 
the  sale,  to  give.  Thompson,  when  called  on  to  sign  the  note, 
as  surety,  said  that  he  signed  as  surety  for  no  one  but  his  fa- 
ther, and  asked  no  one  but  his  father  to  sign  for  him,  but  said 
he  would  give  his  own  note  for  the  wheat  with  his  father  as 
surety,  or  he  would  pay  the  money  for  it.  The  administrator 
took  plaintiff's  note  at  nine  month's  credit  without  surety, 
which  was  paid  by  him  at  maturity. 

The  administrator  deposed  that  the  wheat  was  threshed 
with  a  portable  thresher,  belonging  to  the  plaintiff,  on  a  tract 
of  land,  recentl}'  purchased  by  Pickard,  and  carried  to  the 
mill  of  the  defendant  with  the  wagon,  horses  and  driver  of 
l^laintiff",  Pickard  being^along ;  that  the  driver  on  delivering 
the  wheat  at  the  mill,  told  the  defendant  that  the  plaintiff 
sent  him  word  to  keep  the  wheat  until  he  called  for  it,  or  sent 
him  an  order  for  it.  Also,  that  the  plaintiff'  demanded  the 
wheat  or  the  flour  made  from  it,  previously  to  the  bringing 
of  the  suit.  ^ 

The  defendant  alleged  that  Pickard  was  the  purchaser  of 
the  wheat,  and  offered  evidence,  tending  to  show,  that  Pick- 
ard had  harvested  it  and  hauled  it  from  the  place  where  it 
grew,  to  the  place  above  described,  and  was  with  the  wagon 
at  the  delivering  of  it  at  the  mill,  and  that  he,  defendant,  had 
accounted  to  Pickard  for  it  previously  to  the  demand.  His 
Honor  instructed  the  jury,  that  if  they  believed  the  plaintiff, 
when  he  gave  his  note,  intended  to  become  himself  the  pur- 
chaser of  the  wheat,  their  verdict  should  be  for  the  plaintiff; 
but  if  he  designed  to  carry  out  the  contract  of  Pickard,  ac- 
cording to  the  bid,  then  their  verdict  should  be  for  the  de- 
fendant. 

Plaintiff's  counsel  excepted.  Yerdict  and  judgment  for 
the  defendant.     Appeal  by  plaintiff. 

Graham^  for  the  plaintiff. 
Phillijys,  for  the  defendant. 

Manly,  J.     The  part  which  the  plaintiff  seems  to  have  ta- 


JUNE  TEEM,  J862.  455 

State  V.  Laughlin. 

ken  (through  his  agents)  in  threshing  and  conveying  to  the 
mill  the  wheat  in  question,  casts  some  doubt  on  the  owner- 
ship, and  especially  upon  the  true  intent  of  the  parties  in  the 
negotiation,  which  resulted  in  the  giving  of  the  plaintiff's 
note  for  the  wheat. 

We  think,  however,  the  question  of  property  was  fairly  put 
to  the  jury,  and  in  the  absence  of  any  request  for  more  spe- 
cific instructions,  was  sufficient. 

Supposing  the  right  of  property  to  have  once  been  in  Pick- 
ard,  as  found  by  the  jury,  there  'was  then  no  evidence  to  show 
a  pledge  of  the  wheat  to  secure  the  plaintiff,  in  respect  to  the 
note  which  he  had  given ;  an  actual  delivery  for  such  pur- 
pose, would  be  necessary  to  constitute  a  pledge,  and  there 
was  nothing  to  show  this. 

Per  Curiam,  Judgment  affirmed. 


STATE  V,  LAUGHLIN,  a  slave. 


A  house  seventeen  feet  long  and  twelve  wide,  setting  on  blocks  in  a  stable 
yard,  having  two  rooms  in  it — one  quite  small,  used  for  storing  nubbins 
and  refuse-corn  to  be  first  fed  to  the  stock,  and  the  other  used  for  storing 
peas,  oats  and  other  products  of  the  farm,  is  not  a  barn  within  the  meaning 
of  the  statute,  Rev.  Code,  chap.  34,  sec.  2,  the  burning  of  which  is  made  a 
felony.. 

Indictment  for  arson,  tried  before  Howard,  J.,  at  the  Fall 
Terra,  1861,  of  Robeson  Superior  Court. 

The  indictment  charged  the  defendant  with  burning  a 
barn,  then  having  corn  in  the  same.  The  juiy  found  a  spe- 
cial verdict  as  follows,  to  wit :  "  That  the  prisoner  did  burn, 
as  charged  in  the  bill  of  indictment,  a  house,  sitting  on  blocks, 
built  of  logs  and  roofed  in,  with  good  floor,  and  door  fastened 
with  padlock,  seventeen  feet  long  by  twelve  feet  wide,  with 


456  IN  THE  SUPEEME  COURT. 

State  V.  Laughlin. 

two  rooms,  one  about  three  times  as  large  as  the  other — the 
small  room  used  for  storing  the  nubbins  or  refuse  corn,  to  be 
first  fed  away  to  the  stock,  and  at  the  time  of  the  fire,  con- 
taining five  or  six  bushels ;  the  other  used  for  storing  the  peas, 
oats  or  other  products  of  the  farm,  and  containing,  at  the  time 
of  the  fire,  twenty  or  thirty  bushels  of  peas,  some  fodder  and 
other  things ;  the  said  house  being  situate  in  the  stable  lot, 
twenty-seven  feet  from  the  stable,  with  two  similarly  built 
houses  in  the  same  lot,  just  back  of  it — one  smaller,  used  in 
storing  the  good  corn  raised  on  the  farm,  and  the  other,  the 
seed  cotton,  and  say,  if  the  Court  should  be  of  opinion  that 
the  said  house  was  a  barn,  then  they  find  the  prisoner  guilt}''  of 
the  arson  and  felony  as  charged,  otherwise  not  guilty." 

The  Court  remarked,  in  giving  his  judgment  in  the  case, 
"  the  statute  is  highly  penal  and  must  be  strictly  construed ; 
the  purpose  of  the  act  was  to  preserve  the  crops  of  corn  and 
grain  ;  the  house  must  be  a  barn,  used  in  part  for  storing  corn 
or  grain,  and  must  have  therein,  at  the  burning,  the  corn  or 
grain,  for  the  storing  of  which  it  is  used.  Peas  are  not  grain. 
Did  the  fact,  then,  that  the  refuse  corn  was  placed  therein,  to 
be  first  fed  to  the  stock,  make  it  a  barn  for  storing  corn.  The 
witnesses  speak  of  it — some  as  a  barn,,  others,  a  waste-house. 
The  statute  being  highly  penal,  the  punishment  the  severest 
known  to  our  law,  the  Court  holds  that  it  is  not  clearly  with- 
in the  purview  of  the  act.  It  is,  therefore,  adjudged  that  the 
prisoner  be  released :"  from  which  judgment  the  solicitor 
prayed  an  appeal  to  the  Supreme  Court,  which  was  granted. 

Attwney  Gen&ral  and  Winston^  Sr.y  for  the  State. 
Shepherd,  for  the  defendant. 

Battle,  J.  When  this  case  was  before  the  Court  at  June 
Term,  1861,  one  of  the  questions  presented  was,  whether  a 
building,  properly  called  a  barn,  was  the  same  with  one  pro- 
perly called  a  crib,  and  it  was  decided  that  it  was  not,  and 
that,  therefore,  an  indictment  for  arson,  in  burning  a  barn,, 
with  grain  in  it,  could  not  be  supported  by  proof  that  the 


JUNE  TERM,  1862.  457 

State  V.  Laughlin. 

building  burnt,  was  a  crib  with  grain  in  it^  Upon  the  new 
trial,  which  took  place  in  consequence  of  that  decision,  a  spe- 
cial verdict  was  rendered,  in  which  the  building  was  particu- 
larly and  minutely  described,  and  it  was  submitted  to  the 
Court  to  decide  whether  it  was  a  barn  or  not,  within  the  mean- 
ing of  the  statute.  So,  that  upon  the  present  appeal,  that  is 
the  only  question  presented  to  us. 

Arson,  at  common  law,  is  defined  by  Lord  Coke  to  be  "  the 
malicious  and  voluntary  burning  the  house  of  another  by  night 
or  by  day."    See  1  Hale's  P.  C.  566. 

The  house  burnt,  in  order  to  be  a  felony,  must  be  a  dwell- 
ing-house, including,  however,  all  outhouses  that  were  parcel 
tliereof,  though  not  contiguous  to  it  or  under  the  same  roof, 
as,  for  instance,  the  barn,  stable,  cow-house,  sheep-house, 
dairy-house  and  mill-house,  or  if  the  house  were  not  parcel  of 
the  dwelling,  it  must  have  been  a  barn,  having  hay  or  corn 
in  it ;  Jhid.  567.  In  England,  the  offense  of  burning  houses 
and  other  property,  is  now  provided  for  by  various  statutes, 
among  which,  the  most  prominent  are,  7  Will.  4  and  1  Vict, 
chap.  89,  sec.  3,  which  re-enacts,  with  some  variations,  the 
7th  and  8th  George  4th,  chap.  30,  sec.  2.  This  statute  makes 
it  a  felony  to  burn  or  set  fire  to  "  any  house,  stable,  coach- 
house, out-house,  ware-house,  office,  shop,  mill,  malt-house, 
hopoast,  barn  or  granary,"  &e.  In  this  State,  also,  the  offense 
of  arson  depends  mainly,  if  not  altogether,  upon  the  statute 
law.  Thus,  by  the  2nd  section,  chapter  34,  of  the  Revised 
Code,  it  is  made  a  capital  felony  to  burn,  wilfully,  "  any  dwell- 
ing-house, or  any  part  thereof,  or  an}'  barn,  then  having  grain 
or  corn  in  the  same,  or  store,  or  ware-house,  grist  or  saw-mill- 
house,  or  any  building  erected  for  the  purpose  of  manufac- 
turing any  article  whatever  ;  and  by  the  7th  and  30th  sec- 
tions, other  provisions  are  made  for  the  protection  from  burn- 
ing of  the  State  house,  and  other  public  houses,  and  houses 
belonging  to  any  incorporate  town  or  company,  in  the  State.  It 
will  be  seen  that  our  statute  does  not  mention  several  of  the 
kinds  of  houses  embraced  in  that  of  Great  Britain  ;  as  for  in- 
stance, out-houses,  stables,  coach-houses,  offices,  granaries,  and 


458  IN  THE  SUPEEME  COUKT. 

State  V.  Laughlin. 

some  others.  In  the  construction  of  the  English  statutes,  it  is 
settled  that  it  must  be  proved,  on  the  part  of  the  prosecution, 
that  the  house,  burnt,  comes  within  the  meaning  of  the  stat- 
ute, and  of  the  description  given  in  the  indictments,  and  as 
the  statutes  are  hig-lily  penal,  the  construction  of  them,  in 
these  particulars,  is  very  strict.  For  cases  on  the  subject, 
see  Roscoe's  Crim.  Ev.  p.  276,  et  seq.  Our  statute,  upon 
which  the  indictment,  in  the  present  case,  is  founded,  is  as 
highly  penal  as  any  known  to  our  law,  and  must,  therefore, 
receive  a  construction  which  will  prevent  the  possibility  of 
the  prisoner's  losing  his  life  for  an  offense  not  within  the  con- 
templation of  the  Legislature.  He  is  charged  with  burning 
a  barn,  and  the  special  verdict  finds  that  he  burnt  a  house  of 
the  description  therein  particularly  set  forth.  If  such  a  house 
be  a  barn,  he  is  guilty  ;  if  not,  he  is  not  guilty.  In  Webster's 
Dictionary,  a  "  barn"  is  said  to  be  "•  a  covered  -building  for 
securing  grain,  hay,  flax  and  other  productions  of  the  earth." 
Bouvier,  in  his  Law  Dictionary,  defines  it  to  be  "  a  building 
on  a  farm,  used  to  receive  the  crop,  the  stabling  of  animals, 
and  other  purposes."  The  house  described,  in  the  special  ver- 
dict, certainly  does  not  come  within  the  meaning  of  either  of 
these  definitions  ;  but  it  does  come  within  the  meaning  of  a 
crib,  which,  according  to  Webster,  is  a  term,  used  in  the  Uni- 
ted States,  to  signify  "  a  small  building,  raised  on  posts,  for 
storing  Indian  corn,"  or  a  granary,  which,  according  to  same 
authority,  is  "  a  store-house  or  repository  of  grain,  after  it  is 
threshed  ;  a  corn-house."  We  have  seen  that  in  the  English 
statute,  above  referred  to,  a  granary  is  mentioned  as  a  diflfer- 
ent  house  from  that  of  a  barn,  and  we  believe  that  in  many 
parts  of  this  State,  and  perhaps  in  the  greater  part  of  it,  there 
is  a  well-known  distinction  between  a  barn  and  a  granary  or 
a  crib,  corresponding  in  the  main  with  the  above  definitions. 
Many  of  the  wealthy  planters  have  both  kinds  of  houses,  while 
most  of  the  farmers,  in  moderate  circumstances,  have  only 
one. 

Our  conclusion  is,  that  the  building,  as  described  in  the 
the  special  verdict,  was  not  a  barn  within  the  meaning  ^of  the 


JUNE  TEEM,  1862.  459 


State  V.  Jim. 

statute  ;  and  that  not  being  a  barn  in  itself,  it  was  not  made 
so  by  having  been  used  for  keeping  the  refuse  Indian  corn, 
and  for  storing  peas,  oats  and  other  produce  of  the  farm.  The 
statute  requires  that  the  house  shall  be  a  barn,  and  shall,  be- 
sides, have  corn  or  grain  in  it,  to  make  the  burning  of  it  a 
capital  felony. 

The  judgment  in  favor  of  the  prisoner,  upon  the  special  ver- 
dict, must  be  affirmed,  and  it  must  be  so  certified  to  the  Court 
below. 

Pek  Curiam,  Judgment  affirmed. 


STATE  V.  JIM,  (a  slave) 


A  house  eighteen  feet  long,  and  fifteen  wide,  built  of  logs  notched  up,  the 
cracks  covered  inside  with  rough  boards,  roofed  with  rough  boards,  with 
a  good  plank  floor,  and  a  door  about  four  feet  high,  containing,  at  the  time 
of  the  burning,  a  quantity  of  corn,  peas  and  oats,  though  the  only  building 
on  the  fixrm  used  for  storing  the  crop,  is' not  a  barn  within  the  meaning  of 
the  statute ;  Rev.  Code,  chap.  34,  sec.  2. 

Tuis  was  an  indictment  for  akson,  tried  before  IIowaed,  J., 
at  the  Fall  Term,  1861,  of  Lenoir  Superior  Court. 

The  factSjOf  the  case  are  so  fully  stated  in  the  opinion  of  the 
Court,  that  it  is  unnecessary  to  set  them  out  here. 

Attorney  General  and  Winston^  Sr.,  for  the  State. 
J.  W.  Bryan,  for  the  defendant. 

Battle,  J.  This  is  an  indictment,  under  the  statute.  Rev. 
Code,  chap.  34,  sec.  2,  for  Arson,  in  burning  a  barn,  having 
corn  in  it.  Upon  the  trial  it  was  proved,  that  the  house 
burnt  ^fas  eighteen  feet  long,  and  fifteen  feet  wide,  was  built 
of  logs  notched  up,  and  the  cracks  were  covered  inside  with 


460  IN  THE  SUPREME  COURT. 

Parker  v.  Davis. 

rough  boards,  the  house  was  roofed  with  rough  boards,  had  a 
good  plank  floor,  and  a  door  about  four  feet  high,  of  the  usual 
width,  which  opened  to  within  a  log  or  two  of  the  floor,  and 
was  fastened  with  a  padlock.  At  the  time  %vhen  it  was  burnt, 
the  house  contained  a  quantity  of  corn,  peas,  and  oats,  and  it 
was  the  only  building  on  the  farm  used  for  storing  the  crop. 
The  witnesses  stated  that  it  was  called  sometimes  a  crib,  but 
generally  a  barn.  The  presiding  Judge  charged  the  jury, 
that  the  house  was  a  barn  within  the  meaning  of  the  statute  ; 
whereupon  a  verdict  of  guilty  was  rendered  against  the  de- 
fendant, and  from  the  judgment  thereon,  he  has  appealed  to 
this  Court. 

We  difier  from  the  opinion  expressed  by  his  Honor,  that 
the  house,  as  described  by  the  testimony,  was  a  barn.  The 
descrii^tion  of  it  does  not  diflFer,  materially,  from  that  set  forth 
in  the  special  verdict  rendered  by  the  jury,  in  the  case  of  the 
State  Y.  Laughlin,  (ante  455)  in  which  we  have  decided -at 
the  present  terra,  that  the  house  burnt  was  not  a  barn,  but  was 
either  a  crib  or  a  granary.  Toy  the  reasons  given  for  our 
opinion  in  that  case,  we  hold  that  the  house  burnt,  as  proved 
on  the  trial  in  the  present  case,  was  not  a  barn,  and  that,  conse- 
quently, the  prisoner  is  entitled  to  a  venij^e  de  novo,  and  this 
will  be  certified  to  the  Court  below  as  the  law  directs. 

Pee  Curiam,  Judgment  reversed. 


D.  A.  PARKER  v.  HENRY  DAVIS. 

An  inquisition  of  lunacy  is  not  conclusive  against  a  person  dealing  with  a  suppos- 
ed lunatic  ;  but  he  may  show  that  at  the  time  of  the  contract,  such  sup- 
posed lunatic  had  sufficient  capacity  to  make  it. 

(Cases  of  Arrington  v.  Short,  3  Hawks  71 ;  Clirisimas  v.  Miichell,  3  Ire. 
Eq.  533,  and  Rippy  v.  Gant,  4  Ire.  443,  cited  and  approved.  Case  of 
Fessenden  v.  Jones,  7  Jones  14,  cited  and  distinguished  from  this.) 


JUNE  TERM,  1862.  464 

Parker  v.  Davis. 

Action  of  assumpsit  for  goods  sold  and  delivered,  tried  be- 
fore Saunders,  J.,  at  the  Spring  Term,  1861,  of  Stanly  Supe- 
rior Court. 

The  defendant  pleaded,  specially,  that  he  had  a  guardian, 
regularl}'  appointed  under  a  commission  of  lunacy.  There 
was  no  contestation  as  to  the  sale  and  delivery  of  the  goods, 
nor  the  price ;  and  it  appeared  that  they  were  of  a  proper 
kind,  and  useful  for  the  subsistence  of  defendant  and  his  fam- 

The  defendant's  counsel  produced  the  record  of  the  inquisi- 
tion of  lunacy  finding  the  defendant  a  lunatic  and  appointing 
to  him  a  guardian,  which  was  regular  in  form  and  not  ques- 
tioned. 

The  plaintiff  then  proposed  to  show,  by  witnesses,  that  at 
the  time  of  the  dealings,  in  question,  the  defendant  was  of 
sound  mind.  The  evidence  was  objected  to  by  defendant,  but 
admitted  by  the  Court :  For  which,  defendant's  counsel  ex- 
cepted. 

It  was  then  stated  by  the  witnesses,  that  the  defendant  had, 
for  years,  been  in  the  habit  of  drinking  spirits  to  great  excess  ; 
that  when  sober,  he  was  a  man  of  ordinary  intelligence — ca- 
pable of  understanding  what  he  was  about  and  of  making  a 
contract;  that  for  the  last  ten  years,  he  generally  came  to 
town  sober  and  went  away  drunk  ;  that  he  had  a  large  family 
of  children,  and  that  the  articles  in  question  had  been  pur- 
chased either  by  his  wife,  or  some  one  of  his  children,  or  by 
himself,  when  sober,  and  that  they  were  family  articles  ;  that 
the  account  had  been  drawn  ofi"  and  given  to  the  defendant, 
who,  after  taking  it  away,  returned  and  said,  '  all  was  right' 

The  defendant's  counsel  objected,  that  the  suit  could  not 
be  maintained  against  the  defendant,  as  he  had  a  regular  guar- 
dian, and  cited  the  case  Fessenden  v.  Jones^  1  Jones  14. 

His  Honor  charged  the  jury,  that  if  they  were  satisfied  the 
articles  had  been  purchased  by  the  defendant,  or  by  his  fam- 
ily, with  his  knowledge  and  approbation,  when  he  was  sober, 
and  had  sufficient  capacity  to  understand  the  nature  of  the 
transaction  ;  that  the  account  had  been  examined  by  him  and 


462  m  THE  SUPREME  COUET. 

Parker  v.  Davis. 

admitted  to  be  correct,  he  then  having  sufficient  capacity  to 
understand,  they  should  find  in  favor  of  the  plaintiff,  but  if 
the  evidence  failed  to  satisfy  them  as  to  the  capacity  of  the 
defendant,  their  verdict  should  be  for  the  defendant.  Defend- 
ant's counsel  excepted  to  the  former  part  of  the  charge. 

Yerdict  and  judgment  for  the  plaintiff.  Appeal  by  the  de- 
fendant. 

'McGorTde^  for  the  plaintiff. 
Ashe^  for  the  defendant. 

Battle,  J.  We  concur  in  the  opinion  expressed  by  his 
Honor  in  the  Court  below.  An  inquisition  of  lunacy  is  not 
conclusive,  and  a  person  who  deals  with  the  supposed  lunatic 
may  show  that  at  the  time  when  the  contract  was  made, 
he  had  sufficient  capacity  to  make  it.  This  was  expressly  de- 
cided by  the  Court,  in  the  case  of  Arrington  v.  Shorty  3 
Hawks,  71,  and  that  decision  has  been  confirmed  by  the  sub- 
sequent cases  of  Christmas  v.  Mitchell,  3  Ire.  Eq.  535,  and 
Ri])yij  V.  Gant,  4  Ire.  Eq.  443. 

The  counsel  for  the  defendant  has  referred  us  to  the  Revis- 
ed Code,  chap.  57,  sec.  1,  which  enacts  that  guardians  of  lu- 
natics shall  have  like  powers,  and  be  subject  to  like  remedies 
on  their  bonds,  as  guardians  of  orphans,  and  he  contends  that 
all  contracts  for  articles  or  for  services  intended  for  the  bene- 
fit of  lunatics,  like  those  for  infants,  ought  to  be  made  with 
their  guardians,  and  that  if  made  with  the  lunatics,  them- 
selves, they  are  no  more  binding  than  such  contracts  would 
be  if  made  with  minors ;  I'essenden  v.  Jones,  7  Jones,  14. 
The  analog}'-  will  not  hold  in  cases  like  the  present,  because 
infants  must  necessarily  remain  such  until  they  arrive  at  full 
age,  when  the  guardianship  of  them  terminates ;  but  a  luna- 
tic may  become  of  sound  mind,  and  be  capable  of  contracting 
for  himself,  and  yet  the  guardianship  may  continue  until  an- 
other inquisition  is  found,  by  wliich  he  is  declared  to  be  of 
sound  mind  again.  Besides,  the  provision  in  the  Revised 
Code,  to  which  reference  has  been  made,  was  taken  from  the 


JUNE  TEEM,  1862.  46S 

State  V.  Brandon. 

act  of  1784,  (Chap.  228  of  Rev.  Code  of  1820,)  which  was  long 
before  the  decision,  to  which  we  have  referred,  was  made. 
The  finding  of  an  inquisition  and  the  appointment  of  a  guar- 
dian for  the  defendant  as  a  lunatic,  not  being  conclusive  up- 
on the  plaintiff,  the  testimony  oftcred  by  him  to  show  the  ca- 
pacity at  the  time  when  the  goods  were  purchased,  was  pro- 
perly admitted,  and  as  no  valid  objection  can  be  urged  against 
the  charge  made  thereupon  by  the  presiding  Judge,  the  judg- 
ment must  be  affirmed. 

'     Per  CuRiAisr,  Judgment  affirmed. 


STATE  V.  WILLIAM  L.  BRANDON. 

No  declarations  of  a  prisoner  made  after  the  commission  of  a  liomicide,  as 
to  the  manner  of  the  transaction,  that  are  not  part  of  the  res  gestcc,  arc  ad- 
missible for  him. 

If  a  party  deliberately  kill  another  to  prevent  a  mere  trespass  to  property,  be 
is  guilty  of  murder. 

The  law  does  not  recognize  any  moj-al  poiver  as  compelling  a  man  to  do  wbafc 
he  knows  to  be  wrong. 

The  insanity  which  takes  away  the  criminal  quality  of  an  act,  must  be  such 
as  amounts  to  a  mental  disease,  and  prevents  the  accused  from  knowing  the 

nature  and  quality  of  the  act  he  is  doing. 

liSTDicTirENT  for  MURDEK,   tried  before  Bailey,   J.,  at  Fall 
Term,  1861,  of  Caswell  Superior  Court. 

The  defendant  was  indicted  for  the  murder  of  one  William 
J.  Connelly,  liis  father-in-law.  He  was  living  on  a  place  be- 
longing to  the  deceased,  some  six  miles  from  the  residence  of 
the  latter,  under  an  agreement  that  he  should  have  all  he  made 
over  and  above  what  was  required  to  support  his  children  and 
three  daughters  of  the  deceased,  who  lived  in  the  house  with  the 
defendant.  The  corn  had  been  gathered  and  was  in  a  pen  on 
the  premises.     On  the  day  before  the  homicide,  as  was  stated 


464  IN  THE  SUPEEME  COUKT. 

State  V.  Brandon. 

by  one  Jachson,  the  defendant  was  in  his  granary  with 
his  gun  and  two  dogs ;  on  being  asked  what  he  was  doing 
there,  he  said  that  Connelly  had  gone  to  'Squire  Richmond's 
to  get  a  writ,  and  have  hiin  put  out,  and  divide  the  corn, 
and  if  he  came  there,  he  intended  to  kill  him  ;  that  Connelly 
had  taken  his  daughter,  Jane,  to  Richmond's,  and  she  had 
sworn  to  one  lie  against  him,  and  he  didn't  intend  to  stand  it  any 
longer. 

John  Moore  swore  that  he  lived  with  the  prisoner ;  that  the 
crop  of  corn,  made  in  1860,  was  gathered  and  put  in  a  pen 

near  the  granary  ;  that  Connell}'^  came  there,  Friday, day 

of  l^ovember,  and  put  his  horse  in  the  stable,  and  the  usual 
salutations  passed  between  Connelly  and  the  prisoner ;  that 
the  defendant  was  sitting  in  the  door  of  the  granary  with  his 
gun  inside,  near  him ;  that  Connelly  got  on  the  corn  in  the 
pen,  and  threw  a  few  hands  full  of  corn  into  the  wagon,  when 
the  prisoner  said  to  him,  "  old  man  get  down  oif  of  that 
pen  and  go  out  of  the  lot,  or  I  will  hurt  you ;"  that  Connelly 
got  down  from  the  pen,  saying  something  that  witness  did  not 
hear  distinctly ;  that  at  this  time  the  prisoner  came  out  of  the 
door  of  the  granary,  with  his  gun  in  his  hands,  and  they  walk- 
ed a  few  steps  towards  each  other ;  the  prisoner  then  raised 
his  gun,  took  aim  at  the  deceased  and  shot  him ;  that  the  de- 
ceased was  also  going  in  the  direction  of  the  stable,  where  his 
horse  was,  and  had  nothing  in  his  hands  when  the  gun  fired ; 
that  he  was  about  63  years  of  age. 

Dr.  Broolcs^  after  testifying  as  to  the  extent  of  the  wound, 
stated  that  the  father  of  the  prisoner  was  deranged,  at  one 
time,  for  about  two  months  ;  that  the  prisoner  had  a  sister,  an 
uncle,  and  an  aunt,  who  had  been  deranged.  He  alse  testi- 
fied to  the  singular  conduct  of  the  prisoner  when  drunk,  but 
did  not  consider  him  deranged  at  that  time. 

Mr.  Warf  stated,  that  he  saw  the  prisoner  in  the  granary 
with  his  gun,  and  Connelly  on  the  pen;  that  prisoner  ordered 
him  down ;  that  Connelly  threw  several  hands  full  of  corn 
into  the  wagon,  and  told  John  Moore  to  get  the  measuring 
tub  ;  John  said  it  was  locked  up  and  prisoner  had  the  key  ; 


JUNE  TEEM,  1862.  465 

State  V.  Brandon. 

he  told  Moore  to  burst  the  door  open  and  bring  it  to  him  ;  that 
every  thing  there  belonged  to  liira  ;  Prisoner  then  said,  "  old 
man,  get  down  from  there  and  go  out  of  the  lot,  or  I  will  hurt 
you  ;  you  are  meddling  with  that  that  does  not  concern  you 
or  yours."  Connelly  replied,  "I  will  show  you,  you  villain, 
to  whom  it  belongs ;"  Connelly  got  off  the  pen  quickly,  and 
the  boys  got  down  at  the  same  time ;  tliat  the  witness  then 
turned  towards  the  gate,  and  presently  heard  the  report  of 
the  gun  ;  that  he  then  returned,  and  found  ■  Connelly  lying 
with  his  head  within  three  feet  of  the  post  of  the  granary,  and 
a  stick  lying  near  the  body  of  the  deceased,  and  blood  upon 
the  hand  of  the  prisoner;  that  shortly  afterwards  he  examin- 
ed the  hand  of  the  prisoner,  and  the  skin  was  off  for  about 
the  size  of  a  ten  cent  piece.  This  witness,  and  several  others, 
testilied  as  to  the  conduct  of  the  prisoner,  prior  to  the  com- 
mission of  the  act,  tending  to  show  that  he  was  deranged,  and 
that  his  ancestors  were  deranged. 

The  prisoner  then  offered  to  give  in  evidence  what  he  said  to 
Dr.  Brooks  shortly  after  the  homicide  was  committed,  to  wit,  that 
the  wound,  on  his  hand,  was  caused  by  a  blow  given  by  de- 
ceased with  a  stick,  which  caused  the  blood  on  his  hand. 
This  evidence  was  rejected  by  the  Court,  and  defendant's 
counsel  excepted. 

The  prisoner's  counsel  insisted,  1st,  that  although  the  prisoner 
knew  it  was  wrong  to  kill  the  deceased,  yet,  if  he  was  impell- 
ed to  the  act  by  a  moral  power,  which  he  could  not  resist,  he 
was  excusable. 

2.  That  if  the  deceased  committed  a  trespass  in  attempting 
to  take  away  the  corn,  and  the  prisoner,  in  order  to  protect 
his  property,  sliot  and  killed  the  trespasser,  it  would  be  man- 
slaughter and  not  murder.  The  Court  charged  the  jury,  that 
if  the  prisoner  was  insane  at  the  time  of  committing  the  hom- 
icide, they  should  acquit  him ;  that  every  one  was  presumed 
to  be  sane  until  the  contrary  was  shown  ;  that  the  prisoner 
must  satisfy  them  of  that  fact.  Defendant's  counsel  excepted 
to  the  charge. 


4:^6  IN  THE  SUPREME  COURT. 

State  V.  Brandon. 

Verdict^guilty  of  murder.  The  Court  pronounced  judg- 
ment of  death,  and  the  defendant  appealed. 

Attoymey  General^  and  Winston,  Sr.,  for  the  State. 
No  counsel  appeared  for  the  defendant  in  this  Court; 

Manly,  J.  The  first  question,  which  the  record  presents, 
is,  whether  the  declarations  of  defendant  were  competent,  in 
his  behalf,  to  show  how  he  received  a  certain  wound. 

It  is  stated  that  the  declarations  were  made  shortly  after 
the  homicide.  There  is  no  principle,  upon  which  these  can 
be  held  admissible,  except  as  a  part  of  the  "  7'es  ffestce,'^  and 
the  statement  of  the  case  excludes  the  idea  that  they  were  of 
this  nature.  The  declarations  were  after  the  act  was  past  and 
done.  This  question  has  been  brought  under  review  in  this 
Court  on  several  former  occasions,  which  will  be  seen  by  a 
reference  to  the  cases  o^  State  v.  Scott,  1  Hawks,  24;  State  v. 
Huntley,  3  Ire.  418  ;  State  v.  Tilly,  do.  424.  The  profession- 
al idea  seems  to  have  been  that  a  narrative  given  by  a  per- 
son, who  has  committed  a  homicide,  as  to  how  it  happened, 
immediately  after  the  act,  and  when  the  first  proper  opportu- 
nity off'ered,  should  be  admitted.  But  this  evidence,  though 
dictated  by  what,  in  divers  supposable  cases,  might  be  deem- 
ed a  necessity,  is  so  clearly  against  principle,  and  entitled,  in 
the  greatest  number  of  instances,  to  so  little  credit,  and  is  so 
well  calculated  to  ohscure  rather  than  elucidate  a  transaction, 
that  the  Court  have  uniformly  adhered  to  their  original  judg- 
ment, by  which  it  was  excluded.  It  has  been  no  where,  that 
we  are  aware  of,  interpolated  as  a  rule  of  evidence,  upon^ 
the  common  law,  by  legislation  or  otherwise.  In  the  case 
before  us,  tlie  circumstances  under  which  the  declarations,  in 
question,  were  made,  are  so  vaguely  stated,  as  not  to  bring 
them  within  any  proposed  or  i-easonable  rule.  But  we  make 
no  question  about  this.  Take  the  statement  of  the  case  in 
any  sense,  and  the  declarations  are  plainly  excluded  by  the 
well-settled  law  of  evidence  in  North  Carolina.    They  must 


JUNE  TERM,  1862.  467 

State  V.  Brandon. 

be  a  part  of  the  res  grstce,  and  come  in  us  explanation  of  an 
act  being  done  when  they  were  made,  or  not  at  all. 

The  second  question  arises  upon  a  position  taken  by  the 
prisoner's  counsel,  that  if  the  killing  was  to  protect  prisoner's 
property  from  the  trespass  of  the  deceased,  it  would  be  an 
extenuated  case  of  homicide.  In  this  position,  it  seems,  the 
Court  did  not  concur.  The  matter  involved  in  this  point,  has 
been  before  this  Court  heretofore,  on  more  occasions  than  one. 
It  seems  to  have  been  first  carefully  considered  in  the  case  of 
the  Siaie  v.  Morgan,  3  Ire.  ISO,  and,  again,  in  the  /State  v. 
McDonald,  4  Jones,  19.  In  these  two  cases,  it  is  fully  set- 
tled, if  a  party  deliberately  kill  to  prevent  a  mere  trespass  to 
property,  he  is  guilty  of  murder. 

The  third  and  last  question,  made  upon  the  record,  arises 
out  of  proofs,  in  respect  to  the  mental  condition  of  the  prison- 
er. The  record  states  the  prisoner's  counsel  insisted  that, 
although  the  prisoner  knew  it  was  wrong  to  kill  the  deceased, 
yet,  if  he  was  impelled  to  the  act  by  a  moral  power,  which 
he  could  not  resist,  he  was  excusable.  The  words,  "moral 
power,"  may  mean  threats,  duress  of  imprisonment,  or  an  as- 
sault imperilling  life,  which  is  the  usual  sense  of  the  phrase, 
or  it  ma}'  mean,  some  siqyernatural  agency.  The  former  con- 
struction would  make  the  position  of  the  counsel  entirel}^  in- 
applicable to  the  case  ;  we,  therefore,  adopt  the  latter.  The 
position,  thus  interpreted,  does  not  fall  within  any  approved 
definition  of  a  "  non  coiivpos  mentis.'''' 

It  assumes  that  the  accused  knew  the  nature  of  his  act  and 
that  it  was  wrong.  The  law  does  not  recognize  any  moral 
power  compelling  one  to  do  what  he  knows  is  wrong.  "To 
know  the  right  and  still  the  wrong  pursue,"  proceeds  from  a 
perverse  will  brought  about  by  the  seductions  of  the  evil  one, 
but  which  nevertheless,  with  the  aids  that  lie  within  our  reach, 
as  we  are  taught  to  believe,  may  be  resisted  and  overcome, 
otheiwise  it  would  not  seem  to  be  consistent  with  the  princi- 
ples of  justice  to  punish  any  malefactor.  There  are  many  ap- 
petites and  passions  which  by  long  indulgence  acquire  a  mas- 
tery over  men  more  or  less  strong.  Some  persons  indeed  deem 


468  m  THE  SUPREME  COURT. 

State  V.  Brandon. 

themselves  ineupable  of  exerting  strength  of  will  sufficient  to 
arrest  their  rule, — speak  of  them  as  irresistible,  and  impotent- 
ly  continue  under  their  dominion  ;  but  the  law  is  far  from  ex- 
cusing criminal  acts  committed  under  the  impulse  of  such 
passions.  To  excuse  one  from  criminal  responsibility  the 
mind  must,  in  the  language  of  the  Judge  below,  be  insane. 
The  accused  should  be  in  such  a  state  from  mental  disease  as 
not  to  know  the  nature  and  quality  of  the  act  he  was  doing, 
or  if  he  did  know  it,  that  he  did  not  know  he  was  doing  what 
was  wrong,  and  this  should  be  clearly  established.  This  test, 
a  knowledge  of  right  and  wrong,  has  long  been  resorted  to  as 
a  general  criterion  for  deciding  upon  legal  accountability,  and 
with  a  restricted  application  to  the  act  then  about  to  be  com- 
mitted, is  approved  by  the  highest  authorities.  But  we  do 
not  undertake  to  la})-  down  any  rule  of  universal  application. 
It  seems  to  be  chimerical  to  attempt  to  do  so  from  the  very 
nature  of  things,  for  insanity  is  a  disease  and,  as  is  the  case 
with  all  other  diseases,  the  fact  of  its  existence  is  not  estab- 
lished by  a  single  symptom,  but  by  a  body  of  symptoms,  no 
particular  one  of  which  is  present  in  every  case.  Imperfect 
as  the  rule  may  be,  it  covers  a  great  variety  of  cases  and  may 
aid  the  tribunals  of  the  country  in  judging  of  this  most  diffi- 
cult subject.  The  case  put  of  a  criminal  act  committed  under 
the  belief  that  it  was  commanded  by  God,  would  fall  under 
the  rule.  The  perpetrator  in  such  would  not  know  he  was 
doing  what  was  wrong,  but  on  the  contrary,  believe  he  was 
doing  what  was  right  in  obeying  a  power  who  had  a  right  to 
command  him.  This  condition  of  mind  would  constitute  in- 
sane delusion  in  respect  to  the  particular  act  committed,  and 
if  clearly  established  by  proof  of  pre-existent  facts,  would  ex- 
cuse from  responsibility. 

It  will  thus  be  seen  that  instructions,  in  conformity  with 
the  argument  of  prisoner's  counsel,  ought  not  to  have  been 
given.  If  the  prisoner  knew  that  what  he  did  was  wrong, 
the  law  presumes  that  he  had  the  power  to  resist  it,  against 
all  supernatural  agencies,  and  holds  him  amenable  to  punish- 
ment.   There  is  no  error  in  the  instructions  actually  given 


JUNE  TERM,  1862.  469 


Tomlinson  v.  Lono;. 


npon  this  subject,  and  in  the  absence  of  any  prayer  for  other 
specific  instructions,  there  is  no  omission,  of  which  the  prison- 
er has  a  legal  right  to  complain. 

There  being  no  error  found  upon  the  record,  this  must  be 
certified  to  the  Superior  Court  of  law  for  Caswell,  that  the 
said  Court  may  proceed  again  to  pronounce  the  judgment  of 
the  law. 

Per*  Curiam,  Judgment  affirmed. 


JOHN  11.  TOMLINSON  v.  W.  W.  LONG. 

The  sheriff's  return  on  process  in  his  hands,  "  not  to  be  found  in  my  county," 
implies  that  the  person  to  be  reached  by  the  process,  was  not  to  be  found 
after  due  search,  and  if  the  fact,  thus  impUed,  be  untruly  stated,  the  return 
is  a  false  one. 

Where  a  person,  to  be  summoned  by  a  subpoena,  was  at  his  home,  in  the 
sheriff's  county,  for  fifteen  days  preceding  the  day  of  the  return  of  the  pro- 
cess, though  the  sheriff  lived  twenty-five  miles  from  him,  and  though  he 
was  informed  that  such  person  would  continue  out  of  the  county  during  al\ 
that  time,  it  was  held  he  was  liable  for  the  penalty  for  making  a  false  re- 
turn, in  saying  that  he  was  not  to  be  found. 

Action  of  DEBT  for  a  penalty,  tried  before  French,  J.,  at 
the  Spring  Term,  1861,  of  Iredell  Superior  Court. 

The  declaration  was  fvi-  the  penalty  of  $500,  for  a  false  re- 
turn to  a  subpoena  placed  in  defendant's  hands,  to  be  by  him 
executed,  as  sheriff  of  Yadkin  county. 

A  suit,  in  equity,  was  pending  in  the  Court  of  Equity  of 
Iredell  count}',  between  John  H.  Tomlinson,  plaintifl:',  and  B. 
B.  Benham  and  W.  II.  A.  Speer,  defendants,  which  had  been 
referred  to  W.  P.  Caldwell,  Esq.,  clerk  and  master  of  the  said 
Court,  to  state  an  account  between  the  parties.  It  was  prov- 
ed by  Mr.  Caldwell,,  that  on  or  about  the  18th  of  November, 
1859,  he  issued  a  subpoena,  in  due  form,  directed  to  the  sher- 

4 


470  IN  THE  SUPKEME  COURT. 

Tomlinson  v.  Long. 

iff  of  Yadkin  count}^,  commanding  him  to  summon  J.  S.  Clay- 
well,  witness  for  plaintiff,  to  be,  and  appear,  in  Statesville, 
N.  C,  on  the  10th  of  January,  1860,  and  that  about  the  time 
of  issuing  said  subpoena,  he  either  gave  it  to  defendant.  Long, 
or  mailed  it  to  him,  directed  to  Yadkinville,  the  county  seat 
of  Yadkin  county,  of  which  the  said  Long  was  sheriff,  and 
that  the  same  was  returned  to  him,  at  Statesville,  on  the  10th 
of  January,  1860,  endorsed,  "]^ot  to  be  found  in  my  county." 
The  day  when  the  subpcena  came  to  the  hands  of  the  defend- 
ant, had  not  been  endorsed  on  the  process.  J.  S.  Claywell 
testified,  that  he  had  been  a  citizen  of  Yadkin  count}'^  for  ten 
years  past,  and  was  personall}^  well  known  to  the  defendant; 
that  he  lived  some  fourteen  miles  from  Yadkinville,  and  was 
at  home  throughout  the  montli  of  December,  1859,  except 
some  five  days  immediately  preceding  christmas  day  ;  that 
he  returned  home  on  christmas  day,  and  i-emained  at  home, 
about  one  mile  from  Jonesville,  in  Yadkin  county,  during  the 
mouth  of  January,  1860.  The  witness  stated  that  he  often 
crossed  the  river  into  Surry,  but  did  not  i-ecollect  that  hciwas 
out  of  the  county  from  December  25th,  1859,  till  10th  Janu- 
ary, 1860. 

jR.  31.  Allison  testified,  that  he  was  in  Yadkin  county  du- 
ring the  first  week  in  January,  1860,  and  saw  the  witness, 
Claywell. 

£.  B.  Benhani,  for  the  defendant,  testified  that  the  defend- 
ant. Long,  came  to  his  house,  in  Jonesville,  in  December, 
1859,  while  Claywell  was  absent  from  the  county,  and  told 
him  he  had  a  subpoena  for  Claywell,  to  give  evidence  in  be- 
half of  Tomlinson,  in  the  suit  aforesaid,  and  he  told  Long  that 
Claywell  had  left  on  that  day,  and  would  not  return  to  Yad- 
kin for  two  or  three  weeks.  This  evidence  was  objected  to 
by  plaintiff's  counsel,  but  admitted  by  the  Court. 

The  defendant  introduced  E.  C.  lioiigJdon^  one  of  his  dep- 
uties, who  testified,  that  on  the  day  before  the  return  day  of 
the  subpoena,  he  went  to  the  residence  of  the  witnesss,  Clay- 
well, but  did  not  find  him  at  home  ;  that  Long's  post-ofiice  is 


JUNE  TEKM,  1862.  471 

Tomlinson  v.  Long. 

Huntsville,  ten  miles  from  Yadkin,  and  twenty -five  miles  from 
Clay  well's. 

On  this  state  of  facts,  his  Honor  intimated  that  the  plaintiff 
could  not  recover;  in  deference  to  which,  he  took  a  nonsuit 
and  appealed. 

Barber^  for  the  plaintiff. 

FowU^  Boyden  and  Mitchell^  for  the  defendant. 

Manly,  J.  After  some  reflection  upon  the  facts  of  this 
case,  we  arrive  at  a  different  conclusion  from  that  of  the 
Court  below. 

It  does  not  appear,  definitely,  upon  what  day  in  December 
the  defendant  received  the  subpo3na.  It  was  either  delivered 
to  him  personally,  or  transmitted  through  the  mail  from  Ire- 
dell to  Yadkin  on  the  10th  ;  and  as  the  distance  is  short,  and 
we  are  certainly  informed  that  he  received  it  in  that  month, 
on  some  day  previous  to  christmas,  it  is  fair  to  conclude 
he  received  it  as  early  as  the  15th.  Claywell,  the  indi- 
vidual to  be  summoned,  had  an  established  and  well  known 
residence  in  the  count}^,  and  was  absent  from  the  county  for 
five  days,  only,  immediately  preceding  christmas  day. 

We  attach  but  little  importance  to  the  distance  between  the 
sheriff  and  witness'  residence.  The  sheriff  must  be  able,  eith- 
ther  by  himself  or  deputies,  to  discharge  his  duty  in  all  parts 
of  the  county,  with  proper  ofiicial  dispatch. 

In  like  maunncr,  we  attach  but  little  weight  to  the  misin- 
formation derived  from  Benliam."  The  sheriff'  should  assure 
himself  of  a  fact,  upon  which  he  bases  a  return^  by  something 
more  certain  than  the  conjectures  of  wayside  men. 

Without  criticisiug  the  words  in  which  the  return,  "  not  to 
he  found^''  is  couched,  but  putting  a  construction  on  them 
most  favorable  to  defendant,  viz  :  that  witness  had  not  been 
found  after  due  search,  and  our  opinion  still  is,  that  it  amounts 
to  a  false  return.  It  was  not  true,  thus,  to  say,  by  implication, 
that  proper  search  had  been  made. 

If  the  sheriff  desires  to  avoid  the  heavy  penalty  of  the  stat- 


472  IN  THE  SUPKEME  COURT. 

Tomlinson  v.  Long. 

ute  for  2i false  return^  he  should,  in  all  cases  of  doubt,  return 
the  facts,  and  not  merely  his  conclusions.  By  doing  so,  if  it 
should  appear  that  he  has  erred,  he  will  have  subjected  him- 
self to  the  penalty  of  $100,  for  not  duly  executing  and  return- 
ing, but  not  to  the  higher  penalty  for  a  false  return.  This  last 
penalty  is  imposed  only  for  returns  false  in,  fact^  and  not  for 
those  which  are  false  only  by  way  of  inference^  (the  facts  be- 
ing truly  stated).  This  distinction  is  taken  in  the  late  case  of' 
Hassel  v.  Latham,  7  Jones,  465, 

The  law,  as  well  as  christian  morality,  abhors  falsehood. 
It  is  especially  mischievous  and  odious  in  a  public  officer,  and 
hence  the  severe  penalty  imposed  upon  it  in  the  Code,  chap. 
105,  sec,  17.  It  is  not  necessary  there  should  be  a  criminal 
intent.  This  characteristic  is  probably  absent  from  the  pre- 
sent case.  Falsehood,  in  fact,  is  the  mischief  guarded  againsti 
The  rigour  of  the  rule  is  essential  to  secure,  on  behalf  of  the 
public,  a  corps  of  officers,  diligent,  circumspect  and  truth- 
ful, qualities  which  will  be  regarded  the  more  indispensable,, 
when  we  consider  the  numerous  important  and  sacred  inter- 
ests, committed  to  their  charge. 

We  repeat  that  this  is- no  hardship  to  the  sheriflp.  If  he  be 
in  any  doubt  as  to  the  legality  of  his  conclusions  in  making  a 
return,  let  himi^  return  the  facts  and  throw  himself  upon  the 
judgment  of  th-e  court.  He  can,  in  that  way,  avoid  the  pen- 
alty of  a  mistatement  of  fact,  while  he  will  fall,  at  worst,  on 
the  penalty  for  negligence,  which  is  comparatively  venial. 

In  the  present  state  of  the  sheriff's  return,  we  think  it  is 
false. 

Tlie  nonsuit  must,  therefore,  be  set  aside,  and  a  venire  de- 
novo  ordered. 

Per  Curiam,  ,  Judgment  reversed. 


JUNE  TERM,  1862.  473 


Albright  v.  Tapscott. 


JOHN  G.  ALBRIGHT  v.  JOHN  TAPSCOTT. 

-A  return  made  by  a  sheriff,  that  is  false  in  fact,  although  the  officer  was  mis- 
taken in  the  matter  as  to  which  he  made  his  return,  will,  nevertheless,  sub- 
ject him  to  the  penalty  for  a  false  return. 

In  an  action  of  debt  for  a  .penalty,  in  which  nil  debit  is  pleaded,  a  verdict 
finding  all  issues  in  favcr  of  the  plaintiff  and  assessing  his  damages  to  $500, 
will  not  sustain  a  judgment  of  recovery. 

Action  of  debt  against  the  defendant,  as  sheriff  of  Ala- 
mance, for  making  a  false  return,  tried  before  Bailey,  J.,  at 
the  Fall  Term,  186L 

The  action  was  brought  for  the  penalty  of  $500,  A  sub- 
poena came  to  the  hands  of  the  defendant,  as  sheriff  of  Ala- 
mance county,  commanding  him  to  summon  one  Cynthia 
Randleman,  &c.,  as  a  witness  for  the  plaintiff.  The  sheriff's 
deputy,  to  whose  hajids  the  process  came,  summoned  one  Ju- 
lia Randleman,  the  wife  of  the  defendant,  in  the  suit,  and  did 
not  summon  Cynthia  Randleman,  and  did  not  have  an  oppor- 
tunity of  doing  so,  for  she  was  not  in  the  county  during  the 
period  prescribed  for  the  execution  of  the  writ.  The  writ 
was,  nevertheless,  returned  as  "executed." 

The  Court  was  of  opinion,  that  on  this  state  of  facts,  the 
plaintiff  was  entitled  to  recover,  and  so  instructed  the  jury, 
who  returned  a  verdict  for  the  plaintiff,  and  judgment  being 
given  thereon  for  plaintiff,  the  defendant  appealed. 

]J^o  counsel  appeared  for  the  plaintiff  in  this  Court. 
Crraham,  for  the  defendant. 

Manly,  J.  The  return  of  the  sheriff,  which  is  the  subject 
of  this  action,  is  certainly  untrue.  We  have  held,  at  this 
term,  in  the  case  of  Tomlinson  v.  Long^  (ante  A:Q^)  that  it  is 
not  necessary  the  officer  should  be  convicted  of  any  criminal 
intent. 

It  follows,  therefore,  that  the  return  is  false,  in  the  sense  of 
the  statute,  Rev.  Code,  chap.  105,  sec.  17,  and  that  the  de- 
fendant, in  the  present  state  of  the  return,  is  subject  to  the 


474  m  THE  SUPREME  COURT. 

Albright  v.  Tapscott. 

penalty  of  $500.  We  refer  to  what  is  said  in  the  case  of  To?n- 
linson  v.  Long,  as  containing  the  reasons  that  control  our  judg- 
ment in  this. 

The  great  importance  of  securing  for  these  returns,  absolute 
verity,  being  quasi  records,  and  the  strong  temptations,  which 
exist  to  cover  over  omissions  by  the  technical  form  of  a  re- 
turn, lead  us  to  adopt  the  stringent  rule,  that  every  untrue 
return,  in  fact,  is  a  false  return,  within  the  purview  of  the 
statute. 

It  is  not  difficult  to  conceive  of  cases,  in  which  the  sheriff 
might  be  deceived  into  a  false  return  without  laches  on  his  part. 
In  such  cases  the  power  of  allowing  amendments,  so  as  to 
state  the  facts  of  the  case,  should  be  liberally  indulged  b}'^  the 
court.  By  such  means,  any  surprise,  into  which  the  officer 
might  have  fallen,  would  readily  be  obviated. 

We  concur,  therefore,  entirely  with  the  Court  below,  in  its 
judgment,  as  to  the  character  of  this  return. 

But  there  is  an  irregularity  in  the  verdict,  for  which  the 
judgment  must  be  arrested.  The  action  is,  properly,  one  of 
debt.  The  plea  is  nil  debet.  The  verdict  finds  all  issues  in 
favor  of  the  plaintiff,  and  assesses  his  damages  to  $500,  and 
interest. 

This  is  not  such  a  verdict  as  consists  with  the  pleadings. 
It  would  have  been  technical  and  proper,  in  an  action  upon 
the  case,  for  damages,  which  are  secured  by  the  same  statute 
that  gives  the  penalty,  but  is  insensible  as  a  finding  in  an  ac- 
tion, upon  the  statute,  for  the  penalty.  It  is  not  responsive  to 
the  issues,  and  there  can  be  no  judgment  upon  it ;  Archbold's 
K  P.  850. 

Pek  Cukiam,  Let  the  judgment  be  arrested. 


JUNE  TERM,  1862.  475 


Ledbetter  v.  Arled^e. 


GEORGE  LEDBETTER  v.  ISAAC  ARLEDGE. 

The  provisions  of  the  Revised  Code,  chap.  31,  sec.  50,  requiring  the  return  of 
all  writs,  process,  &c.,  to  be  made  on  the  first  day  of  the  term,  to  which 
they  are  returnable,  does  not  apply  to  executions  or  writs  oi fieri  facias. 

Motion  for  a  judgment  ni.  si.  against  the  defendant,  as 
sheriff  of  Henderson,  heard  before  Dick,  J.,  at  Spring  Term, 
1861.     This  case  was  submitted  to  his  Honor  on  a 

CASE   AGREED, 

An  execution  issuing  from  the  Count}''  Court  of  Henderson, 
in  favor  of  George  Ledbetter  against  one  William  Reese,  more 
than  twenty  days  before  the  term  of  the  Court,  was  placed  in 
the  hands  of  the  defendant,  who  failed  to  return  the  same  on 
the  Monday  of  the  term.  On  Thursday  of  the  term,  to  which 
the  execution  was  returnable,  the  plaintiff  asked  for  and  ob- 
tained a  judgment  ni.  si.  against  the  defendant,  who  immedi- 
ately thereafter  paid  the  amount,  called  for  in  the  execution, 
to  the  plaintiff's  attorney,  and  asked  for  and  obtained  leave 
of  the  Court  to  make  his  return.  On  the  next  day  (Friday) 
the  defendant  asked  leave  of  the  Court  to  strike  out  the  order 
granting  a  judgment  against  him,  which  was  granted,  and  the 
judgment  ni.  si.  was  ordered  to  be  stricken  out,  from  which 
the  plaintiff  prayed  and  obtained  an  appeal  to  the  Superior 
Court. 

In  the  Superior  Qowvt  a. pro  /wwid^  judgment  was  given  for 
plaintiff,  and  defendant  appealed  to  this  Court. 

No  counsel  appeared  for  the  plaintiff  in  this  Court. 
Phillips,  for  the  defendant. 
\ 
Manly,  J.     The  provisions  of  the  Code,  chapter  31,  section 

50,  requiring  the  return  of  all  writs,  process,  &c.,  on  the  first 
day  of  the  term,  to  which  they  are  returnable,  does  not  apply 
to  executions  or  writs  of  fieri  facias. 

This  is  apparent  from  a  consideration  of  the  section  in  all 
its  parts,  for  it  is  further  provided  therein,  that  process,  not 
made  returnable  or  executed  as  directed,  shall  be  adjudged 


476  IN  THE  SUPREME  COURT. 

Houston  V.  Neuse  River  Nav.  Co. 

void  upon  the  plea  of  the  defendant.  From  which  it  seems, 
that  it  means  such  process  only  as  a  plea  could  be  made  to, 
viz  :  original,  or  mesne  ;  see  Duncan  v.  Hill^  2  Dev.  and 
Bat.  291.  It  is  also  apparent,  from  the  provisions  made,  by 
law,  for  postponing  sales  under  executions,  from  the  first  to 
the  later  days  of  the  term  ;  Rev.  Code,  chap.  45,  sec.  14,  and 
from  the  general  practice  of  the  courts.  ■ 

The  sheriff  is  allowed  all  the  days  of  the  term  to  return  a 
jieri  facias^  unless  he  be  ruled,  upon  motion,  and  cause  shown, 
to  return  it  on  some  intermediate  day.  When  the  return  is 
made,  like  other  acts  of  the  Court,  it  stands,  by  relation,  as  if 
done  on  the  first  day. 

It  follows  that  when  a  sheriff  made  due  return  on  Thursday 
of  his  execution,  it  was  not  only  in  the  power,  but  it  was  the 
duty  of  the  Court  to  strike  out  the  conditional  judgment,  as 
soon  as  the  fact  of  the  return  was  brought  to  its  notice. 

The  proceedings  of  a  court  are  all  mpapei\  until  its  close, 
and  are  subject,  in  the  mean  while,  to  be  reviewed,  amended 
or  revoked,  as  may  seem  to  the  Court's  maturer  judgment 
right  and  proper. 

The  action  of  the  County  Court  was  strictly  in  accordance 
\vith  law,  and  consequently,  the  ^/'(? /(9/7>z«  judgment  of  the 
(superior  court  erroneous,  wherefore,  the  latter  should  be  re- 
Versed,  and  judgment  be  for  the  defendant. 

Per  Ctteiam,  Judgment  reversed. 


WILLIAM  J.  HOUSTON,    Solicitor,    v.   THE  NEUSE   EIVER   NAVI- 
GATION COMPANY. 

An  information  in  the  nature  of  a  writ  of  quo  warranto  against  a  corporation, 
to  have  its  privileges  declared  forfeited,  because  of  neglect  and  abuse  in  the 
exercise  of  them,  must  be  filed  in  the  name  of  the  Attorney  General  of  the 
State,  and  cannot  be  instituted  in  the  name  of  a  solicitor  of  a  judicial  circuit. 

In  a  matter  of  a  public  nature,  the  officer,  who  acts  for  the  State,  does  not 
pay  costs  to  the  other  party. 


JUNE  TERM,  1862.  47T 

Houston  V.  Neuse  River  Nav.  Co. 

This  was  an  information  in  the  nature  of  a  quo  warranto, 
heard  at  tlie  Fall  Term,  1861,  of  Craven  Superior  Court. 

The  information  sets  forth  divers  causes,  why  the  corporation 
should  be  considered  as  having  forfeited  its  privileges,  but 
from  the  view  taken  of  tlie  case  in  this  Court,  neither  of  these 
allegations,  nor  the  grounds  of  defens^,  relied  on  in  the  answer, 
ar^  material  to  be  stated.  The  cause  was  disposed  of  in  the 
Court  below  by  api'o  /(9r7??.«  judgment,  that  the  information 
be  dismissed  at  the  plaintiff's  costs,  from  which  plaintiff  ap- 
pealed. 

J.   IV.  Bryan.,  for  the  plaintiff. 
Attmore,  for  the  defendant. 

Battle,  J.  This  is  an  information  filed  on  belialf  of  the 
State  by  the  plaintifi',  as  solicitor  of  the  second  judicial  cir- 
cuit, in  the  Superior  Court  of  law  for  the  county  of  Craven, 
against  the  defendant,  to  enquire  by  what  warrant  the  com- 
pany is  now  exercising  its  coi-porate  franchises,  it  being  al- 
leged that  it  has  forfeited  them.  The  information  was  filed 
by  leave  of  the  Court,  first  had  and  obtained.  The  defend- 
ant appeared,  by  attorne}^,  and  put  in  an  answer,  and  upon 
the  hearing  in  the  Court  below,  the  information  pr'o  forma, 
was  ordered  to  be  dismissed  at  the  plaintiff's  costs  ;  and  the 
plaintiff  appealed  to  the  Supreme  Court. 

Upon  the  argument  hei-e,  it  was  objected  that  the  informa- 
tion was  improperly  filed  by  a  solicitor,  and  it  is  contended  that 
it  must  be  dismissed,  because  it  was  not  instituted  under  the 
order  of  the  General  Assembly,  or  the  Governor,  or  the  At- 
torney General  of  the  State,  as  directed  by  the  25th  section  of 
the  26th  chapter  of  the  Revised  Code.  The  objection  is,  we 
think,  well  taken,  and  is  fatal  to  the  proceeding  in  the  pre- 
sent form.  The  information  is  in  the  nature  of  a  writ  oi  quo 
warranto.,  instituted  on  the  behalf  of  t'.ie  covereign,  and  it  can 
be  used  only  in  the  cases  and  in  the  manner  prescribed  by 
the  sovereign.  It  follows  that,  as  the  Legislature  has  prescrib- 
ed in  the  chapter  and  section  of  the  Revised  Code,  to  which 


478  IN  THE  SUPREME  COURT. 

Mason  v.  Williams. 
^ 

reference  has  been  made,  that  an  information  filed  against  a 
corporation  for  the  purpose  of  having  its  franchises  declared 
to  have  been  forfeited  by  abuse  or  neglect,  must  be  by  the 
sanction  of  the  General  Assembl}',  or  the  Governor,  or  the 
Attorney-General,  it  cannot  be  filed  by  any  other  authority 
or  by  any  other  officer.  There  are,  indeed,  oases  in  which  an 
information  in  the  nature  of  a  writ  of  quo  loarranto^  may*be 
filed  by -a  solicitor  as  well  as  by  the  xlttorney-General,  but  it 
is  in  consequence  of  an  express  provision  of  law  to  that  effect. 
Thus,  when  a  person  usurps  an  ofiice,  or  intrudes  into  it,  or  is 
found  unlawfully  holding  or  executing  it,  the  95th  chapter  of 
the  Revised  Code,  section  101st,  authorises  the  Attorney-Gen- 
eral or  a  solicitor  for  the  state,  to  institute  a  proceeding  of  this 
kind  against  him  for  the  purpose  of  trying  his  right  to  it. 
Tlie  authority  thus  given  expressly  to  a  solicitor,  in  a  partic- 
ular case,  is  au  irresistible  argument  to  prove  that  he  has  it 
not  in  other  cases,  where  it  is  not  only  not  given  to  him,  but 
expressly  conferred  upon  another. 

The  order,  dismissing  the  information,  is  afiirmed,  but  it  is 
reversed  as  to  the  costs.  In  a  matter  of  a  public  nature,  the 
officer,  wdio  acts  for  the  State,  does  not  pay  costs  to  the  other 
party  ;  State  v.  King,  1  Ire.  22 ;  8tate  v.  Banner,  Bush.  257. 

Pee  Cukiam,  Information  dismissed. 


I 


WILLIAM  S.  MASON  v.  ALFRED  WILLIAMS. 

Where  a  person  purchases  a  chattel  from  one  who  is  not  the  owner  of  it, 
and  it  is  admitted  by  the  parties,  or  found  by  the  jury  as  a  fad,  that  the 
purchaser  was  induced  to  make  the  purchase  by  the  declarations  or  acts  of 
the  true  owner,  the  latter  will  be  estopped  from  impeaching  the  transaction. 

Action  of  teover  for  the  conversion  of  a  steam  engine,  tried 
before  Heath,  J.,  at  the  Fall  Term,  1860  of  Wake  Superior 
Court. 


JUNE  TEKM,  1862.  479 

Mason  v.  Williams. 

The  case  was  submitted  to  his  Honor  and  the  jury  upon  the 
following 

CASE   AGREED. 

"  The  title  to  the  engine,  in  question,  %vas  in  James  F.  Jor- 
dan &  Co.,  upon  24th  July,  1851,  when  William  D.  Cooke, 
one  of  the  partners,  conveyed  his  interest  tlierein  to  P.  F. 
Pescud,  as  trustee,  for  sale,  &c.  On  the  7th  November,  1851, 
James  F.  Jordan,  another  partner,  conveyed  his  interest  to 
one  W.  H.  Jones,  as  trustee,  for  sale,  &c.  As  was  understood 
between  the  parties  to  these  conveyances,  the  partnership  of 
James  F.  Jordan,  tfc  Co.,  which  consisted  of  other  partners 
besides  the  two  mentioned,  was  still  carried  on,  and  so  con- 
tinued to  be,  retaining  the  possession  of  the  property,  until  it 
became  insolvent,  at  which  time,  by  assignments,  its  property 
became  vested  in  the  plaintitf,  the  corporation  having  con- 
veyed tlie  same  in  1855,  to  one  Benedict,  in  payment  ofafirm 
debt,  who,  upon  6th  of  June,  1856,  conveyed  it  to  the  plain- 
tiff, as  trustee,  for  sale,  &c.  After  this,  P.  F.  Pescud,  being 
in  his  own  right,  and  as  agent  for  Jones,  about  to  make  sale 
of  the  property,  conveyed  as  above,  and  not  knowing  that  the 
engine,  in  question,  was  included  therein,  was  informed  by 
Mason  that  it  was  so  included,  and  that  he  ought  to  sell  it, 
he  (Mason)  having  no  claim  upon  it.  There  was  no  evidence 
that  the  defendant  had  any  knowledge  of  this  conversation 
before  the  sale. 

Pescud,  accordingly,  a  few  weeks  afterwards,  to  wit,  in  No- 
vember, 1857,  offered  it  at  public  sale,  with  the  other  things, 
and  stated  to  the  bidders  that  his  title  was  good,  asking,  if 
any  one  present  had  any  claim,  but  stating,  he  only  sold  his 
right  to  it  and  that  of  Jones.  Mason  was  present,  within  hear- 
ing, and  made  no  objection.  He  also  bid  for  the  engine,  but 
it  was  purchased  by  the  defendant. 

It  is  admitted  that  Mason  then  believed  Pescud's  title  was 
good  ;  subsequently,  however,  in  consequence  of  the  decision 
in  the  case  Bank  v.  J^owle,  4  Jones'  Eq.  8,  he  had  reason  to 
change  his  views,  whereupon  he  made  a  demand  for  the  en- 
gine upon  the  defendant,  and  the  latter  refused  to  deliver  it^ 


480  IN  THE  SUPREME  COURT. 

Mason  v.  Williams. 

It  is  agreed  that,  unless  defendant  was  tenant  in  comraoR 
with  the  plaintiff,  or  as  against  the  plaintiff,  sole  owner  at 
the  time  of  the  demand  and  refusal,  there  was  a  conversion 
before  the  bringing  of  this  suit,  and  that  if  he  were  tenant  in 
■common,  there  was  a  conversion,  supposing  that  a  claim,  to 
the  exclusive  ownership,  amounted  to  such." 

These  facts  being  agreed  upon,  his  Honor  -charged  the 
jury  in  favor  of  the  defendant,  who  rendered  a  verdict  for  the 
defendant.     Judgment;  and  appeal  by  plaintiff. 

Fowle^  for  the  plaintiff. 
Phillips^  for  the  defendant. 

Battle,  J.  It  appears  from  the  agreement  of  the  parties 
that  at  the  time  when  the  defendant  purchased  the  steam  en- 
gine in  question  at  th-e  public  sale  made  by  Pescud,  the  plain- 
tiff was  the  owner  of  it,  but  it  is  contended  for  the  defendant 
that  the  plaintiff,  in  consequence  of  his  declarations  and  acts, 
is  stopped  from  asserting  his  title  to  the  article.  The  argu- 
ment is  that  it  must  be  taken  either,  that  the  plaintiff  had 
waived  his  title,  and  thereby  authorized  Pescud  to  sell  the  ar- 
ticle, or  that  he  cannot  now  be  allowed  to  assert  it,  because  it 
would  be  a  fraud  upon  the  defendant  to  permit  him  to  do  so. 
In  support  of  his  argument  the  counsel  for  the  defendant  has 
cited  and  relied  upon  the  cases  of  Bird  v.  Benton^  2  Dev. 
Rep.  179,  and  Cornish  v.  Abington,  4  Hurl,  and  Kor.  Rep. 
549.  In  the  first  of  these  cases,  it  is  held  that  a  sale  or  pledge 
of  a  chattel  by  a  person,  who  has  no  title,  in  the  presence  of 
the  owner  and  without  objection  on  his  part,  estops  him  from 
setting  up  his  title  to  impeach  the  transaction.  In  the  latter 
case,  the  Court  says,  that  if  from  the  actual  expressions  or 
course  of  conduct  of  one  person,  the  other  may  reasonably  in- 
fer the  existence  of  an  agreeaient  or  license,  and  acts  upon 
such  inference,  whether  the  former  intends  that  he  shall  do 
so  or  not,  the  party  using  the  language,  or  who  has  so  con- 
ducted himself,  cannot  afterwards  gainsay  the  reasonable  in- 
ference to  be  drawn  from  his  words  or  conduct. 

To  evade  the  force  of  these  propositions,  it  is  insisted,  for 


JUNE  TEEM,  1862.  ^1 


Mason  v.   Williams. 

the  plaintiff,  that  at  the  time  when  he  spoke  to  Pescnd',  he- 
was  ignorant  of  his  own  title,  as  he  was  also  at  the  sale,  and 
that  there  was  no  evidence  to  show  that  the  defendant  was 
misled  by  what  he  had  said  or  done,  or  that  the  defendant 
had  purchased  the  article,  in  question,  in  consequence  of  his 
declarations  or  acts. 

The  counsel  for  the  plaintiff  has,  in  support  of  his  views, 
referred  to  the  case  of  West  v.  Tilghman^  9  Iredell  Kep.  103, 
wherein  it  was  decided  that  though  the  owner  of  a  slave,  who 
is  ignorant  of  his  title,  stands  by  and  sees  the  slave  sold  by  a 
person  having  no  title,  and  makes  no  objection,  yet  he  is  not 
thereby  estopped  from  asserting  hia  claim. 

We  have  examined  these  and  the  ather  cases  referred  to  by 
the  connsel  on  both  sides,  and  in  our  opinion  the  true  princi- 
ple to  be  derived  from  them  is  this  :  where  a  person  purchases 
a  chattel  from  another  who  is  not  the  owner,  and  it  is  admit- 
ted by  the  parties,  or  found  by  the  jury  as  a  Jact,  that  the 
purchaser  was  induced  to  laake  the  purchase  by  the  declai'a- 
tions,  or  acts  of  the  true  owner,  the  latter  will  be  estopped 
from  impeaching  the  transaction  ;  see  PicTcard  v.  Sears,  33 
Eng.  Com.  L.  Rep.  117.  If,  then,  in  the  present  case  it  had 
been  stated  as  an  agreed  fact  that  the  defendant  purchased 
the  steam  engine  in  question  from  Pescud,  in  consequence  of 
what  the  plaintiff  told  Pescud,  or  in  consequence  of  the  con- 
duct of  the  plaintiff  at  the  time  of  the  sale,  we  should  say 
that  the  latter  could  not  recover.  That  fact  cannot  however 
be  inferred  by  the  Court  from  any  thing  stated  in  the  case 
agreed,  and  it  must  be  left  as  a  question  for  the  jury,  upon 
whatever  competent  and  relevant  testimony  the  parties  may 
be  al)le  to  ])roduce  on  the  trial,  llie  case  agreed  was  made 
up  in  the  Court  below,  to  be  "  submitted  to  his  Honor  and  to 
the  jury,"  and  his  Honor  took  it  upon  himself  to  decide  a 
question  of  fact,  which  he  ought  to  have  left  to  the  jnry,  in 
consequence  of  which,  there  is  error,  and  the  judgment  must 
be  reversed  and  a  venire  de  novo  awarded. 

Pick  Curiam,  JudgmeEi  reversed. 


482  IN  THE  SUPREME  COURT. 


Neal  V.  Eail  Road  Company. 


C.  E.  NEAL  &  CO.  V.  WILMINQTON  &  WELDON  RAIL  ROAD  CO.* 

Where  freight  is  carried  on  a  railroad,  from  station  to  station,  if  the  owner  is 
not  read)'  to  receive  it  at  its  destination,  the  duty  of  the  Carne?"  is  discharg- 
ed by  placing  it  in  the  ware-house  of  the  company  without  giving  notice  to 
the  owner  or  consignee. 

It  is  certainty  not  required  of  the  ware-house  men,  at  a  railroad  station,  to 
notify  consignees,  living  at  a  distance,  of  the  arrival  of  their  goods,  either 
through  the  mails  or  otherwise. 

Where  a  railroad  agent  received  goods  into  the  company's  ware-house,  at  a 
country  station,  which  was  an  ordinary  wooden  house,  which  he  kept 'fas- 
tened in  the  night  time  with  iron  locks,  bolts  and  bars,  also  in  the  day  tinae 
in  the  same  manner,  it  appearing  that  the  agent  resided  two  hundred  yards 
from  the  ware-house,  it  was  held  to  be  ordinary  care,  and  that  the  compa- 
ny was  not  liable  for  the  loss  of  the  goods  by  theft. 

Action  on  tlib  case  for  negligence,  tried  before  Bailey,  J. 
at  the  Spring  Term,  1861,  of  Edgecombe  Superior  Court. 

The  following  is  the  case  as  agreed  between  the  counsel  of 
the  pai'ties. 

The  declaration  contained  two  counts :  first  against  defend- 
ant as  "  common  carriers,  and  2nd  as  warehousemen.  The 
facts  are,  that  about  the  1st  of  May,  1859,  the  plaintiff  deliv- 
ered to  defendant  a  box  of  merchandise  of  the  value  of  $390, 
at  Weldon,  to  be  transported  from  that  place  to  Rocky  Mount. 
The  goods  were  transported  and  delivered  in  the  ware-house 
of  defendant,  at  the  latter  place,  and  on  the  day  after  the  ar- 
rival, or  the  second  day  thereafter,  the  plaintiff  applied  for 
the  box,  and  on  examination,  it  could  not  be  found  in  the 
ware-house,  but  was  found,  the  same  daj'-,  a  few  hundred 
yards  from  tlie  station,  broken  open  and  rifled  of  its  contents. 
The  ware-house  was  an  ordinary  wooden  building,  such  as  the 
company  had  at  all  the  other  stations,  except  at  Weldon, 
Goldsboro'  and  Wilmington,  where  they  are  made  of  biick. 
The  company  receive  large  amounts  of  freight  at  this  station, 
for   persons   residing   in  Tarboro'   and    Nashville   and   their 

*Judge  Battle  being  a  stockholder  in  the  Rail  Road  Company,  took  no  part 
in  the  decision  of  this  Case; 


JUNE  TERM,  1862.  »     483 


Neal  V.  Rail  Road  Company. 


vicinity.  The  ware-house  usiuilly  had  in  it  goods  of  con- 
siderable value,  and  the  company  had  no  watch  or  guard 
at  night  for  its  protection.  The  agent  resided  about  two 
hundred  yards  from  the  station.  The  doors  of  the  ware- 
house were  secured  by  locks,  bolts  and  bars  in  the  usual  manner 
at  night,  and  in  like  manner  in  the  day  time,  when  the  agent 
was  absent.  The  plaintiif  resided,  and  did  business  in  Tar- 
boro,  about  eighteen  miles  distant,  and  there  was  a  daily 
mail  from  Eocky  Mount  to  Tarboro.  The  company  did  not 
give  notice  of  the  arrival  of  the  goods.  The  defendant  is  an 
incorporated  company,  and  has  been  duly  organised. 

It  is  agreed  that  if  the  Court  shall  be  of  opinion  that  the 
plaintilfs  are  entitled  to  recover,  judgment  shall  be  rendered 
for  $390,  with  interest  from  1st  of  May,  1859,  and  cost  of  suit, 
but  if  of  a  contrary  opinion,  judgment  of  nonsuit  shall  be  en- 
tered. 

The  Court  being  of  opinion  with  the  defendant,  on  the  case 
agreed,  ordered  a  nonsuit,  from  which  the  plaintiff  appealed. 

No  counsel  appeared  for  the  plaintiff  in  this  Court. 
B.  F.  Moore,  for  the  defendant. 

Manly,  J.  The  facts,  of  tliis  case,  are  similar  to  those  pre- 
sented in  the  case  of  nUliard  v.  The  same  Company,  report- 
ed in  6  Jones,  343,  and  our  reflections  lead  us  to  the  same 
general  conclusions. 

Where  freight  is  carried  on  a  railroad  from  station  to  sta- 
tion, if  the  consignee  or  agent  be  not  ready  to  receive  it  at 
its  destination,  the  duty  of  the  carrier  is  discharged  by  plac- 
ing it  in  the  ware-house  of  the  company,  for  there  is  no  usage 
or  rule  of  law  which  requires  the  company's  servants  to  de- 
liver elsewhere  than  at  the  station,  and  from  tlie  nature  of 
this  mode  of  transportation,  it  is  impracticable  to  give  notice 
prior  to  the  necessary  discharge  of  the  freight.  We  think, 
therefore,  the  duty  of  the  company,  as  a  common  carrier,  is 
fnllilled  when  the  packages  are  placed  in  the  ware-house  of 
the  company  (no  person  being  present  to  receive  them)  with- 


484  IN  THE  SUPREME  COURT. 

Neal  V.  Rail  Road  Company. 

out  giving  notice  to  the  consignee  or  agent.     The  exigences  of 
transportation  by  steam  require  this. 

Other  duties  then  devolve  upon  the  company,  viz.,  those 
which  appertain  to  a  bailment  for  transportation.  The  point 
first  occurring  in  this  view  of  the  case  is,  whether  the  duty  to 
notify  owners  or  consignees  belongs  to  this  particular  kind  of 
trust.  We  do  not  think  it  necessary  to  discuss  how  this  may 
be  in  all  cases.  In  the  particular  one  before  us,  it  was  not,  as 
we  conceive,  the  duty  of  the  company.  The  party,  by  whom 
the  package  was  owned,  and  to  whom  it  was  directed,  resided 
at  the  distance  of  eighteen  miles  from  the  station,  and  had  no 
agent  at  the  place.  It  cannot  be  that  the  ware-house  men  of 
the  company  were  required  to  notify  through  the  mail.  The 
great  nuniber  and  variety  of  articles  transmitted  by  this  mode 
of  conveyance  tlirough  our  country,  would  make  such  a  duty 
extremely  burthensome,  if  not  impracticable.  What  may  be 
the  rights  of  the  consignees  residing  at  the  station,  we  leave 
undecided.  Those  who  reside  at  distances,  making  commu- 
nication inconvenient,  except  through  the  mails,  are  not  en- 
titled to  notice. 

The  remaining  question  presented  by  the  case,  in  the  point 
of  view  we  are  now  considering,  is,  whether  the  company,  as 
ware-house  men,  took  the  prc/per  care  of  the  packages  in 
question.  Ordinary  care  is  what  is  required,  and  this  is 
defined  hj  a  recent  elementary  treatise  (Story  on  Bailments 
section  41)  to  be  "  that  which  men  of  common  prudence, 
generally  exercise  about  their  own  affairs  in  the  age  and 
country  in  which  they  live."  We  have  attentivel}'  con- 
sidered the  facts  bearing  upon  this  enquirj',  and  conclude 
there  is  nothing  to  show  a  want  of  the  requisite  care.  The 
house  is  of  tlie  kind  used  by  pi-udent  men  to  store  things 
of  value.  It  is  secured  by  fastenings  appropriate  to  such 
buildings — is  kept  by  an  agent,  who  resides  a  short'  distance 
from  it,  and  who  closed  it,  by  its  fastenings,  at  all  times,  both 
night  and  day,  when  he  was  absent  from  it.  This  satisfies  the 
definition  of  ordinary  care.  There  may  b-2  conditions,  of  a 
city,   or  other  community,  making  a  :iglt-watch  a  proper 


JUNE  TERM,  1862.  485 

Hudson  V.  Critcher. 

safe-guard,  but  there  is  nothing  in  the  previous  general  his- 
tory of  our  country  places,  or  in  the  proofs  respecting  this 
particular  locality,  which  induces  us  to  think  that  it  was  de- 
manded there  by  the  requirements  of  ordinary  care. 

Upon  the  whole  case,  we  concur  in  the  opinion  of  the  Court 
below,  and  the  judgment  of  nonsuit  should,  therefore,  be  af- 
firmed. 

Per  Curiam,  Judgment  affirmed. 


CEPHAS  HUDSON  v.  ANSON  CRITCHER. 

The  existence  of  a  claim,  in  equity,  is  a  sufficient  consideration  for  a  promise 
to  pay  money  or  any  other  thin^:,  and  such  promise  may  be  recovered  in 
an  action  at  law. 

This  was  an  action  of  assumpsit,  tried  before  Bailey,  J.,  at 
the  Fall  Term,  1861,  of  Granville  Superior  Court. 

The  declaration  contained  two  counts  :  one  for  the  price  of 
two  slaves.  Jack  and  Friday,  which  plaintiff  ha^  sold  to  the 
defendant,  and  for  which  he  promised  to  pay  the  sum  of 
$287.25  ;  the  other,  the  common  count  in  assumpsit. 

One  Paschall  testified,  that  on  the  10th  June,  1856,  the  plain- 
tiff and  defendant  came  to  him  and  asked  him  to  make  a  settle- 
ment between  them,  stating  that  prior  to  that  time,  to  wit,  about 
the  16th  of  January,  1856,  the  plaintiff  had  sold  to  the  de- 
fendant two  negro  slaves," named  Jack  and  Friday;  that  he 
then  made  a  statement  of  accounts  between  the  parties  upon 
their  statements  of  debt  and  credit,  and  that  there  was  a  bal- 
ance in  favor  of  the  plaintiff  $287.25,  the  price  of  the  slaves, 
which  balance,  the  defendant  promised  the  plaintiff  that  he 
would  pay,  and  at  the  same  time,  he  (defendant)  made  a  wri- 
ting in  these  words : 

5 


486  IJN"  THE  SUPREME  COURT. 

Hudson  V.  Critcher. 

"To  Hudson— Balance,  $287.25;"  and  handed  it  to  the  wit- 
ness to  keep  as  a  memorandum  of  the  amount  of  said  balance. 

The  defendant  then  produced  and  ])roved  two  bills  of  sale, 
under  seal,  dated  16th  January,  1856,  for  Jack  and  Friday, 
in  which,  the  payment  of  the  full  price  was  acknowledged. 

The  defendant  insisted  that  the  plaintiff  was  estopped  by 
these  bills  of  sale,  and  that  the  debt  was  entirely  taken  away, 
and  there  was  no  consideration  for  the  promise  to  pay  the 
money  sued  for.  His  Honor  being  of  that  opinion,  so  in- 
structed the  jury,  who  found  a  verdict  in  favor  of  the  defend- 
ant. The  plaintiff  excepted  to  the  charge  of  the  Court,  and 
appealed  from  the  judgment  rendered  on  the  verdict. 

ISTo  counsel  appeared  for  tl)e  plaintiff  in  this  Court. 
B.  F.  Moore,  for  the  defendant. 

Manly,  J.  An  acknowledgment  in  a  bill  of  sale,  under 
seal,  or  in  a  deed,  of  the  reception  of  the  consideration  money 
is,  in  general,  a  bar  to  any  action,  at  law,  for  the  same.  This 
was  very  properly  recognised  by  his  Honor  below  as  an  es- 
tablished principle.  But  there  remains,  notwithstanding,  in 
foro  conscientim  a  claim,  which  a  court  of  equity  will  enforce. 
It  is  something  more  than  a  mere  moral  obligation.  This  was 
decided  by  the  Court  in  Crawley  v.  Timberlake,  1  Ire.  Eq. 
346. 

It  is  also  settled,  that  an  equitable  demand  is  a  sufiicient 
consideration  to  support  at  law  a  promise  to  pay ;  Loioe  v. 
Weatherley,  4  Dev.  and  Bat.  212 ;  Nohlet  v.  Green,  2  Dev. 
517.  When,  therefore,  parties,  between  whom  there  is  an 
unsettled  demand  of  this  nature,  come  to  an  account  and 
strike  a  balance,  which  the  indebted  party  promises  to  pay, 
the  equitable  is  converted  into  a  legal  demand,  and  may  be 
recovei'ed  by  an  action,  at  law,  upon  the  promise.  The  ac- 
cepting of  such  a  promise  and  the  consequent  abandonment  at 
that  time  of  further  strife  or  litigation,  in  respect  to  the  claim, 
is  the  consideration.     Without  intimating  any  opinion  upon 


JUNE  TERM,  1862.  m 

Cox  V.  Cox. 

the  merits  of  the  plaintiff's  case  in  this  view  of  it,  we  think  it 
ought  to  have  been  presented  to  the  jury. 

Promises,  upon  equitable  considerations,  seem  to  have  been 
maturely  considered  by  the  English  Judges,  m  ha7il:,  in  the 
case  of  Hawkes  v.  Saunders^  1  Cowper,  289,  and  we  refer  to 
it  for  a  corroboration  of  the  judgment  of  the  Court  in  Lowe  v. 
Weatherley  and  Noblet  v.  Green.  In  the  English  Court,  the 
question  arose  in  an  action  upon  the  promise  of  an  executor, 
having  assets,  to  pay  a  legacy  ;  this  was  held  to  be  a  promise 
obligatory  at  law.  The  general  doctrine  of  moral  and  equi- 
table considerations  is  discussed,  and  there  is  a  concurrence  of 
opinion,  to  the  extent,  that  a  present  demand  in  equity,  is  a 
consideration  sufficient  to  support  a  promise  in  an  action  at 
iaw,  brought  upon  it. 

There  siiould  be  a  venire  de  novo. 

Per  Curiam,  Judgment  reversed. 


ESTHER  COX  v.  JOHN  COX, 


A  court  cannot  strike  out  an  entry  of  a  compromise  in  a  suit  and  order  it  for 
trial  because  it  has  been  imperfectly  entered,  or  because  it  has  not  been 
performed.  The  proper  way  ia  to  amend,  nunc  pro  tunc,  so  as  to  make  the 
record  speak  the  truth,  and  then  to  enforce  the  performance  of  the  compro- 
mise by  attachment  or  other  means,  usual  in  such  cases. 

This  is  an  appeal  from  an  interlocutory  order  of  the  Supe- 
rior Court  of  Davidson,  made  by  Saunders,  J.,  in  a  suit  pend- 
ing in  that  Court,  for  a  divorce. 

The  parties,  in  the  case,  having  compromised  on  certain 
terms,  an  entry  was  made  on  the  docket,  in  these  words,  to 
wit,  ''  Compromised  and  dismissed  at  cost  of  the  defendant, 
provided  the  cost  is  paid."  At  the  next  term  thereafter,  it 
appeared  that  the  cost  was  not  paid,  and  the  plaintiff's  coun^ 


488  IN  THE  SUPREME  COURT. 

Cox  V.  Cox. 

sel  moved  that  the  entry  be  stricken  out,  and  that  the  cause 
stand  for  trial  on  the  docket.  To  sustain  this  nuotion,  he  pro- 
duced several  affidavits,  showing  that  a  part  of  the  compro- 
mise was,  that  the  plaintiff  was  be  restored  to  her  home,  and 
was  to  be  well  treated  and  provided  for  by  her  husband  ;  he 
also  urged  the  non-payment  of  the  costs,  as  one  of  the  grounds, 
for  setting  aside  the  entry. 

The  defendant  filed  his  own  affidavit,  not  denying  the  terms 
df  compromise,  as  alleged  by  the  plaintiff,  and  insisting  that 
he  has  been  ready  and  willing  to  perform  it  as  stated  by  her, 
and  giving  reasons  why  the  plaintiff  had  not  returned  home, 
and  also  why  the  cost  had  not  been  paid. 

The  Superior  Court,  on  consideration  of  the  motion  and  the 
facts  disclosed,  made  the  following  order  :  "  It  appearing  to 
the  satisfaction  of  the  Court,  that  the  entry  made  by  the  clerk 
upon  the  trial  docket,  did  not  contain  the  full  and  true  terms  of 
the  compromise  and  agreement  in  said  case — that  said  defend- 
ant has  not  complied  with  the  said  compromise  and  agree- 
ment, it  is  ordered  that  the  case  stand  for  trial  at  the  next 
term  of  this  Court." 

From  which  order,  the  defendant  prayed  an  appeal  to  the 
Supreme  Court,  which  was  allowed. 

Kittrell  and  Miller^  for  the  plaintiff. 
Gorrell^  for  the  defendant. 

Manly,  J.  This  is  an  appeal,  by  leave,  from  an  interlocu- 
tory order  of  the  Superior  Court  for  Davidson.  Pending  a  suit 
between  the  parties  for  a  divorce,  a  compromise  was  agreed 
upon  and  partly  entered  of  record,  some  of  the  conditions 
of  the  compromise  being  omitted.  At  the  term  next  after  the 
compromise,  evidence  was  laid  before  the  Court,  by  affidavit, 
of  the  omission  above  stated,  and  of  the  non-performance  gen- 
erally, of  the  conditions ;  whereupon  the  Court  ordered  what 
was  upon  the  record  to  be  stricken  out,  and  the  case  to  stand 
upon  the  docket  for  trial. 

We  think  this  order  cannot  be  supported,  because  oi  defect 


JUNE  TERM,  1862.  489 

Cox  V.  Cox. 

of  power  in  the  Court.  Compromises  put  a  speedy  end  to 
contentions  and,  therefore,  commend  themselves  to  the  favor- 
able regard  of  the  courts.  They  are  entered  of  record,  and 
may  be  enforced  by  rules  upon  the  respective  parties,  to  per- 
form, and  by  attachments,  if  need  be.  The  courts  cannot  un- 
make any  more  than  they  can  make  them  at  pleasure  ;  but 
will  see  that  they  are  properly  entered  upon  the  records,  vi^heu 
made,  and  faithfully  carried  into  execution,  if  practicable. 
Without  discussing  the  powers  which  the  court  might  have 
over  such  compromises,  in  certain  states  and  conditions  of 
them,  it  is  sufficient  to  say  that  neither  the  imperfect  state  of 
the  record,  nor  the  neglect  of  one  party  to  perform,  and  the 
consequent  dissatisfaction  of  the  other,  would  furnish  the 
court  witii  an  occasion  for  the  exercise  of  a  power  to  abrogate. 

This  disposes  of  the  question  before  us,  and  shows  that  there 
is  error  in  the  order  appealed  from.  The  proper  course 
would  have  been  to  amend  the  record  as  to  the  terms  of  the 
compromise  nunc  pro  iunc^  so  as  to  make  it  speak  the  truth, 
and  then  to  compel  its  performance  bj^  the  exercise  of  such 
powers  as  are  usual  and  proper  with  the  Court  to  enforce  its 
rules.  The  powers  of  amendment  are  unquestionable,  and 
the  powers  to  enforce  are  also  clear ;  Freeinan  v.  Morris^ 
Busb.  287  ;  Kirkland  v.  Mangum^  5  Jones,  313. 

We  take  this  occasion  to  reaffirm  that  we  interfere  with  no 
discretionary  power  of  the  superior  court.  The  order,  com- 
plained of,  does  not  lie  within  the  Court's  discretion,  but  is  a 
mistaken  exercise  of  power. 

This  opinion  should  be  certified  to  the  Court  below,  to  the 
end,  that  the  said  order  may  be  reversed  and  the  Court  pro- 
ceed. 

Per  Curiam,  Judgment  reversed. 


490  IN  THE  SUPREME  COURT. 


Foust  V.  Trice. 


Doe  on  the  demise  of  DANIEL  FOUST  v.  G.  W.  TRICE  et  al 

One  who  comes  in  as  landlord  to  defend  an  action  of  ejectment,  cannot  ob- 
ject that  no  notice  to  quit  has  been  given  to  the  original  defendant. 

The  Act  of  1861,  (2d  extra  session)  chap.  10,  sec.  4,  did  not  affect  questions^ 
as  to  the  continuance  of  causes  coming  before  a  court,  whose  sittings 
commenced  upon  Monday  of  the  week,  during  which,  the  act  was  ratified. 

An  occupant  is  incompetent  to  give  evidence  for  the  defendant  in  an  action 
brought  to  recover  the  land,  of  which  he  is  in  possession. 

The  declarations  of  an  occupant,  as  to  the  manner  in  which  he  came  into  pos- 
session of  the  land,  in  question,,  are  competent,  as  evidence  against  the  de- 
fendant, in  an  action  of  ejectment. 

Ejectment,  tried  before  Bailey,  J,,  at  the  Fall  Term,  1861, 
of  Orange  Superior  Court. 

The  case  was  called  on  Thursday  of  the  term,  when  the  de- 
fendant alleged  he  was  not  ready  for  trial,  and  prayed  a  con- 
tinuance, 1st,  for  the  absence  of  James  Pender,  the  occupant 
of  the  land,  in  dispute,  who  was  detained  from  Court  b}'^  sick- 
ness ;  that  he  expected  to  prove  by  Pender  that  he  never  was- 
the  tenant  of  Foust,  the  lessor  of  plaintiflP,  but  was  in  fact 
and  in  truth  the  tenant  of  the  defendants ;  tliat  he  was  car- 
ried on  the  land,  by  the  force  and  fraud  of  one  Hugh  Kirkpa- 
trick,  and  that  being  there,  he  became  the  tenant  of  the  de- 
fendants before  this  suit.  The  Court  ruled  that  Pender  was 
not  a  competent  witness,  if  present,  for  which  the  defendant 
excepted.  2nd,  for  the  want  of  the  evidence  of  one  Wm.  G. 
George,  which  was  set  forth  in  the  affidavit  and  admitted  by 
the  plaintiff.  The  lessor  of  the  plaintiff  exhibited  no  title, 
but  alleged  that  James  Pender,  the  occupant  of  the  land,  was 
his  tenant,  and  insisted  that  the  defendants,  who  were  admit- 
ted to  defend  as  landlords  of  Pender,  were  estopped  to  deny 
his  (plaintiff^s)  title.  He  called  as  a  witness  the  aforesaid 
Hugh  Kirkpatrick,  who  testified  that  he  rented  the  land,  in 
question,  from  the  plaintiff^'s  lessor,  in  the  last  of  the  year 
1853,  or  the  first  of  1854  ;  that  he  was  to  give,  as  rent,  one 
third  of  the  produce  of  the  then  cleared  ground,  and  if  he 
cleared  new  ground,  was  to  have  the  product  of  that  rent-free 


JUNE  TERM,  1862.  491 

Foust  V.  Trice. 

for  two  years ;  that  he  did  not  clear  an}'^  new  ground,  but  cul- 
tivated the  cleared  land,  or  part  of  it,  during  1854-5  and  '6 ; 
that  at  the  end  of  185G,  he  gave  up  the  privilege  of  clearing, 
and  agreed  for  the  year  1857,  to  rent  only  the  cleared  land  ; 
that  at  some  time  during  his  lease,  he  could  not  say  when, 
but  which  other  testimony  fixes  to  have  been  17th  of  Janua- 
ry, 1854,  he  carried  James  Pender  from  a  house  where  he 
(Kirkpatrick)  had  a  lease,  upon  the  land  in  dispute,  put  out 
from  liis  wagon  the  family  and  goods  of  the  said  Pender,  in 
the  woods,  about  twenty  yards  from  a  road,  one-fourth  of  a 
mile  from  the  cleared  land,  and  then  told  said  Pender  that  he 
might  stay  there,  rent  free,  as  long  as  he  had  any  thing  to  do 
with  the  land;  that  Pender  gave  his  assent  to  this,  and  wit- 
ness' negroes  assisted  him  iu  setting  up  forks  and  construct- 
ing a  shelter,  under  which  his  family  staid  until  they  cut  logs 
and  built  a  cabin  near  by,  in  which  they  had  over  since  resi- 
ded ;  that  Pender  soon  after  cleared  a  patch  of  land  for  a  gar- 
den, which  he  had  ever  since  cultivated,  but  had  never  paid 
any  rent. 

The  plaintiff  then  offered  to  prove  the  declarations  of  Pen- 
der, while  in  possession  of  the  land,  to  the  effect  that  Kirkpa- 
trick carried  him  upon  the  land  by  his  own  consent.  This 
was  objected  to  by  the  defendants,  but  admitted  by  the  Court. 
The  defendants  offered  to  show  title  in  themselves,  which  was 
objected  to  by  plaintiff  and  ruled  out,  and  defendants'  coun- 
sel excepted. 

The  defendants  produced  evidence,  tending  to  show,  that 
Pender  was  carried  on  the  land  by  force  and  fraud,  and  did 
not  agree  to  hold  the  land  from  Kirkpatrick  or  Foust. 

The  defendants'  counsel  moved  the  Court  to  instruct  the 
jury,  that  even  if  Kirkpatrick  were  believed,  this  action  could 
not  be  maintained,  because  it  was  brought  prior  to  the  year 
1857. 

2ndly.  That  the  defendant,  Pender,  was  entitled  to  notice 
to  quit,  or  a  demand  of  possession  before  the  action  could  be 
maintained,  of  which  there  was  no  evidence. 

His  Honor  instructed  the  jury,  that  if  Kirkpatrick  was  not 


492  IN  THE  SUPREME  COURT. 

Foust  V.  Trice. 

believed  by  them,  the  plaintiff  was  not  entitled  to  recover, 
but  if  they  believed,  from  his  evidence,  that  Pender  went  to 
occupy  the  land  under  him,  or  that  after  he  went  upon  the 
land,  he  consented  to  remain  there  under  Kirkpatrick,  the 
plaintiff  was  entitled  to  recover,  provided  they  believed 
that  at  the  end  of  the  year  1856,  Kirkpatrick  had  given  up 
the  woodland  and  taken  a  lease  for  the  cleared  land,  only,  for 
the  year  1857,  and  if  this  were  so,  this  action  could  be  main- 
tained, and  there  was  no  necessity  for  a  demand  of  possession 
or  notice  on  Pender  to  quit.  The  defendmits'  counsel  again 
excepted. 

Verdict  and  judgment  for  plaintiff.     Appeal  by  the  defend- 
ants. 

Phillips,  for  the  plaintiff. 
Graham,  for  the  defendants. 

Manly,  J.  Kirkpatrick,  at  the  beginning  of  the  year  1854, 
entered  on  the  land  as  the  tenant 'of  Foust,  under  an  agree- 
ment that  he  was  to  hold,  for  an  indefinite  time,  the  whole 
tract,  paying  as  rent  a  part  of  the  crop  of  each  year,  made  on 
the  cleared  land,  and  was  to  have  anj'-  land  that  he  should 
clear,  rent  free,  for  two  years.  This  certainly  made  Kirkpatrick 
a  tenant  from  year  to  year.  He  afterwards  put  Pender  in  pos- 
session of  a  part  of  the  wood-land  under  an  agreement  that 
he  might  stay  there  as  long  as  Kirkpatrick  had  any  interest 
in  the  land.  Pender  built  a  cabin  and  cleared  a  small  patch 
.and  became  the  assignee  of  Kirkpatrick,  in  respect  to  the 
land  of  which  he  took  possession,  and  was  thus  a  tenant  un- 
der Kirkpatrick,  holding  from  year  to  year,  so  long  as  Kirk- 
patrick's  tenancy  under  Foust,  might  continue.  The  question 
is,  how  was  Pender  affected  by  the  fact,  that  in  1856,  Kirkpa- 
trick agreed  with  Foust,  to  give  up  his  tenancy  in  re- 
spect to  the  wood-land,  and  hold  only  the  cleared  land.  In 
respect  to  Kirkpatrick,  he  had  become  a  tenant  from  year  to 
year,  entitled  to  six  months  notice  to  quit,  and  Kirkpatrick 
held  in  the  same  way  under  Foust,  and  had  a  right  to  assign 


JUNE  TEEM,  1862.  493 

Foust  V.  Trice. 

or  make  a  sub-lease  of  the  same  estate.  It  follows,  as  we  think, 
that  the  agreement  made  by  Foust  and  Kirkpatrick,  could  not 
have  the  effect  of  determining  the  estate  of  Pender  and  con- 
verting him  into  a  wrong-doer  or  a  tenant  at  sufferance,  lia- 
ble to  be  subjected  to  the  cost  of  an  action  without  notice  of 
any  kind.  On  the  contrary,  our  opinion  is,  that  the  effect  of 
the  sublease  was  to  communicate  to  Pender  a  right  to  have 
the  same  notice  from  Foust  that  Kirkpatrick  was  entitled  to, 
or,  at  any  rate,  to  reasonable  notice,  so  as  to  give  him  time  to 
remove  from  the  land  before  he  was  liable  to  an  action.  It 
would  seem,  therefore,  if  Pender  had  defended  the  action, 
and  put  his  defense  upon  the  want  of  notice,  it  would  have 
been  an  answer  to  the  action;  but  as  he  does  not  defend,  and 
Trice  makes  the  defense  for  him,  and  is  allowed  to  do  so  up- 
on the  ground  of  being  his  landlord,  the  case  is  said  to  be  al- 
tered. The  application  on  the  part  of  Trice,  to  be  allowed  to 
defend  in  the  place  of  Pender,  presupposes  that  Pender  is  the 
tenant  of  Trice,  so  that  Pender  having  entered  as  the  tenant 
of  Foust,  must,  on  this  presumption,  have  attorned  or  turned 
over  to  Trice,  whereby  he  disclaimed  or  disavowed  his  ten- 
ancy under  Foust,  and  thus  put  himself  in  the  wrong  and  dis- 
pensed with  the  necessit}'  of  notice. 

Upon  the  first  presentation  of  this  question  to  us,  we  inclin- 
ed to  the  opinion  that  as  a  landlord,  who  defends  in  place  of 
his  tenant,  is  only  allowed  to  make  such  defense  as  the  ten- 
ant could  have  made,  and  is  concluded  by  any  matter  which 
would  have  concluded  the  tenant,  Balfour  v.  Davis,  4  Dev. 
and  Bat.  300,  so  he  should  be  allowed  to  make  every  defense 
which  the  tenant  could  have  made,  had  the  landlord  not  in- 
terposed. But,  upon  further  consideration,  our  opinion  is, 
that  the  point  is  with  the  plaintiff. 

If  we  suppose  Trice  had  not  applied  to  defend  in  the  place 
of  Pender,  but  Pender  had  made  defense  himself,  and  at  the 
trial,  in  reply  to  his  defense,  for  the  want  of  notice,  the  plain- 
tiff had  proved  that,  before  the  action  was  coml^enced,  Pen- 
der had  accepted  a  lease  from  Trice  and  agreed  to  become 


494  IN  THE  SUPREME  COURT. 

*— — — — , 

Foust  V.  Trice. 

his  tenant,  snch  proof  would  certainly  have  dispensed  with  the 
necessity  of  notice. 

If  we  allow  Trice,  in  defending  the  action  as  landlord,  to 
be  neitlier  more  nor  less  restrained  than  Pender  would  ha've 
been,  it  will  follow  that  the  application  to  be  allowed  to  de- 
fend as  landlord,  and  his  being  on  that  ground,  allowed  to 
defend  in  place  of  Pender,  concluded  the  fact,  as  against  him, 
tliat  Pender  had  accepted  a  lease  from,  or  had  otherwise  at- 
torned and  agreed  to  hold  under  him  ;  and  Foust  was  there- 
by dispensed  from  the  necessity  of  notice.  That  is  to  say,  dis- 
pensed, by  reason  of  such  supposed  disclaimer  of  tenancy  un- 
der Foust ;  Archbold's  law  of  landlord  and  tenant,  53,  Law 
Lib.  225. 

On  this  ground,  therefore,  the  holding  of  the  Court  below, 
on  the  principal  point  in  the  bill  of  exceptions,  is  supported. 

Upon  the  other  points,  we  think  the  ruling  of  the  Court 
was  also  correct.  There  is  nothing  in  the  motion  for  a  con- 
tinuance to  withdraw  its  decision  from  the  ordinary  discretion 
of  that  Court,  unless  it  be  the  statute  of  1861-'2,  ex.  ses.  chap. 
10,  sec.  4;  and  that  turns  out,  upon  examination,  not  to  ap- 
Y>ly  to  it.  The  chapter  of  the  statute  in  question  was  in  force 
from  and  after  its  ratification,  i.  e.,  after  the  11th  Sept.  1861. 
The  Court  began  its  session  on  the  ninth  of  the  same  month, 
and  all  acts  of  court,  by  the  doctrine  of  relation,  stand  as  if 
done  on  that  day.  There  is  no  reason  for  excepting  the  acts 
of  the  Court,  now  in  question,  from  the  operation  of  this  doc- 
trine. Therefore,  although  the  order  of  Court  was  not  made 
until  the  12th,  it  related  back  to  the  9th,  and  was  not  affected 
by  the  statute  ;  Farley  v.  Lea,  4  Dev.  and  Bat.  169. 

We  are  also  of  opinion,  that  the  Court  properly  held  that 
Pender,  in  case  he  had  been  present,  would  not  have  been  a 
competent  witness  for  the  defendant.  As  tenant,  in  posses- 
sion, he  was  directly  interested  in  defeating  plaintiff's  re- 
covery ;  for  the  legal  sequence  of  such  recovery,  would  be  the 
eviction  of  the  tenant  from  the  land. 

Pender's  continuing  in  possession  of  the  land,  warranted  also 
the  ruling  of  the  Court,  upon  the  admissibility  of  his  declara- 


JUNE  TERM,  1862.  495 


Dgbson  v.  Finley. 


tions,  in  regard  to  the  nature  of  his  possession.  The  princi- 
ple of  a  person  in  possession  being  heard,  through  his  dedara- 
tions,  to  explain  the  act  of  possession,  is  now  extensively  ap- 
plied, as  will  be  seen  by  reference  to  the  cases  cited  in  second 
edition  of  Dev.  and  Bat.  in  a  note  to  Askew  v.  Reynolds^  vol. 
1,  p.  367,  and  in  the   case  of  Marsh  y.  Ham'pton^  5  Jones, 

382. 

The  circumstances,  under  which  the  declarations  were  made, 
may  not  entitle  them  to  ranch  weight,  but  their  admissibility 
and  credibility  are  quite  different  queetions,  and  triable,  gen- 
erally, by  different  tribunals. 

The  judgment  should  be  affirmed. 

Per  Curiam,  Judgment  affirmed. 


Dot  on  the.  demise  of  JOHN  DOBSON  v.  JAMES  FINLEY. 

Where  the  second  call  of  a  boundary  is  clearly  established,  the  first  may  be 
ascertained  by  running  the  course  reversed,  and  measuring  on  it  the  dis- 
tance called  for. 

A  commiseion  to  take  a  deposition  that  recites  that  it  issued  from  the  "  su- 
preme" court  of  McDowell  county,  for  a  suit  pending  in  McDowell  Superi- 
or Court,  authenticated  by  the  signature  of  the  clerk,  and  seal  of  the  Su- 
perior Court  of  McDowell  county,  is  so  palpable  a  misprison,  as  to  author- 
ise it  to  be  regarded  as  a  commission  issuing  from  the  superior  court. 

Where  a  white  —  was  called  for  as  a  corner,  and  a  white-oak  was  pointed 
out  nearly  in  the  course,  by  a  marked  line  leading  to  it,  and  by  other  cir- 
cumstances, it  was  held  a  proper  question  to  be  left  to  the  jury,  whether  the 
white-oak  was  the  corner  intended. 

Tins  was  an  action  of  ejectment,  tried  before  Osborne,  J., 
at  the  Fall  Term,  1860,  of  McDowell  Superior  Court. 

The  lessor  claimed  title  as  the  heir-at-law  of  one  Dobson, 
and  exhibited  a  grant  to  his  ancestor,  bearing  date  18th  De- 
cember, 1799.    The  controversy  was  as  to  the  location  of  the 


496 


IN  THE  SUPREME  COURT. 


Dobson  V.  Finley. 


grant.  It  called  for  two  pines  on  Beard's  line  on  the  south  side 
of  a  hill,  and  running  west  one  hundred  and  sixty  (160)  poles 
to  a  pine,  Thomas  Young's  old  corner ;  thence  south  crossing 

the  maple  swamp  branch,  100  poles  to^a  white ;  thence 

east  160  poles  to  a  pine,  Terapleton's  corner ;  thence  north,  to 
the  beginning. 


pine 


160  p.  w. 


2  pines. 


T.  Young's 
corner. 


It  was  in  proof,  that  the  beginning  corner  could  not  be 
found,  and  that  Beard  had  no  land  at  the  place  where  it  is 
alleged  to  have  stood,  but  there  existed  a  hill,  and  on  the 
south  side  of  it,  there  were  several  pine  stumps  and  decayed 
pine  timber,  and  running  thence  160  poles,  the  line  reached 
a  pine,  which  was  the  corner  of  a  tract  formerly  owned  by 
Thos.  Young  and  one  Tate  as  tenants  in  common,  and  running 
thence  south  one  hundred  poles,  no  white-oak  or  other  object 
answering  as  a  corner  was  found,  but  varying  the  course  a 
few  degi'ees  to  the  west,  and  extending  the  line  40  poles,  a 
marked  line  was  found  crossing  the  maple  branch,  some  of 
the  trees,  on  which  being  blocked,  the  marks  corresponded  in 
age  with  the  grant,  and  a  white-oak  was  reached  marked  as  a 
corner,  but  which  was  not  blocked  ;  it  stood  very  near,  but 
on  the  opposite  side  of  a  drain,  which  in  winter  afforded  running 
water,  but  in  summer  was  dry.  In  order  to  show  that  the 
pine  was  known  as  Thomas  Young's  corner,  the  plaintiff  in- 


JUNE  TERM,  1862.  497 


Dobson  V.  Finley. 


troduced  a  grant,  bearing  date  in  1798,  to  one  Beard,  for  an 
adjoining  tract  of  land,  one  of  the  calls  of  which  was  for  a 
pine,  Thomas  Yonng's  corner,  which  it  was  proved  was  the 
same  pine  contended  for  by  the  plaintiff,  as  being  in  his  sur- 
vey. This  deed  was  objected  to  by  defendant,  but  admitted 
by  the  Court.     Defendant  excepted. 

The  lessor  of  plaintiff  also  offered  in  evidence  the  deposition 
of  one  Evans.  The  commission,  under  which  it  was  taken,  re- 
cited that  the  same  was  taken  under  an  order  from  the  "  su- 
preme" court  of  McDowell  county,  and  it  lacked  the  or- 
dinary attesting  clause  of  the  clerk,  but  it  named  the  suit 
and  it  was  signed  by  the  clerk  of  the  superior  court  of  Mc- 
Dowell, and  was  under  the  seal  of  that  court.  The  defend- 
ant's counsel  objected  to  the  admission  of  this  deposition,  but 
the  Court  over-ruled  the  objection,  and  the  defendant  again 
excepted. 

Evans  testified  that,  for  many  years,  he  had  owned  and 
lived  on  the  adjoining  tract  to  that  in  controversy  ;  that 
he  knew  the  pine  corner,  and  for  many  years,  it  had  been 
known  as  Thomas  Young's  corner,  and  that  there  was  an  old 
marked  line  from  the  pine  to  the  white-oak,  and  that  the 
white-oak  was  the  corner  of  the  Dobson  grant. 

The  defendant  contended  that  as  the  call,  in  the  grant,  did 
notdesignate  the  white-oak,  or  any  other  natural  object,  as  the 
corner,  but  called  for  a  course  south  and  a  distance  of  100  poles, 
the  plaintiff  was  restricted  on  that  line  to  c6urse  and  distance, 
and  called  on  the  Court  so  to  instruct  the  jury. 

But  his  Honor  charged  the  jury,  that  it  was  necessary  that 
the  lessor  of  the  plaintiff  should  prove  to  their  satisfaction 
that  his  grant  was  located  as  he  contended  ;  that  though  the 
beginning  corner  had  not  been  proved,  yet,  if  they  believed 
that  it  had  existed  at  the  south  side  of  the  hill,  they  would 
60  find,  and  for  this  purpose  they  might  consider  the  testimo- 
ny which  had  been  introduced  to  establish  the  second  corner  of 
the  grant ;  that  if  they  believed,  from  the  proof,  that  the  pine 
was  Thomas  Young's  corner  as  called  for  in  the  grant,  and  then 
measuring  the  line  as  the  surveyor  testified,  it  would  extend 


498  IN  THE  SUPREME  COURT. 

Dobson  V.  Finley. 

to  tliB  south  side  of  the  hill,  and  notwithstanding  the  imper- 
fect description,  that  the  line  of  the  grant  was  the  marked 
line  proved  to  exist,  and  that  the  white-oak  was  the  corner  of 
the  grant,  they  might  find  it  to  be  so.  Defendant's  counsel 
again  excepted. 
Yerdict  and  judgment  for  plaintiff.     Appeal  by  defendant. 

Phillips,  for  the  plaintiff.  • 

No  counsel  appeared  for  the  defendant  in  this  Court. 

Pearson,  C.  J.  We  concur  in  the  opinion  with  his  Honor 
in  the  Court  below,  upon  all  the  points,  which  are  presented 
in  the  statement  of  the  case, 

Iv  Supposing  the  pine  to  be  established  as  the  second  cor- 
ner, could  the  first,  a  beginning  corner,  be  located  by  revers- 
ing the  course  and  measuring  the  distance  called  for,  from  the 
pine  back,  that  is,  on  the  reversed  course.  His  Honor  ruled 
that  the  beginning  corner  could  be  fixed  in  this  way :  we 
agree  with  him.  If  the  second  corner  is  fixed,  it  is  clear,  to 
mathematical  certainty,  that  by  reversing  the  course  and  mea- 
Buring  the  distance,  you  reach  the  first  corner ;  so  there  is  no 
question  about  over-ruling  either  course  or  distance  by  mea- 
suring the  line,  and  the  object  is  to  find  the  corner  by  observ- 
ing both  course  and  distance. 

2.  The  deposition  of  Evans  was  properly  allowed  to  be  read; 
the  word  "  supreme"  being  evidently  a  misprison  of  the  clerk, 
instead  of  "  superior:"  This  is  palpable  ;  because  there  is  no 
supreme  court  in  McDowell  county.  The  signature  of  the 
clerk  and  his  seal  of  ojjice,  gave  full  proof  of  the  authenticity 
of  the  commission. 

3.  We  concur  in  the  opinion,  that  in  order  to  establish  "the 
pine"  as  a  corner  by  reputation.  The  call  in  Beard's  grant, 
issued  in  1798,  was  competent  evidence,  and,  indeed,  was  the 
strongest  sort  of  evidence  to  show  that  "  the  pine"  was  known 
as  Thomas  Young's  corner  ;  and  we  were  at  a  loss  to  see  on 
what  ground  the  evidence  could  be  objected  to,  but  we  are 
toldj  oil  the  argument,  that  the  objection   was,  that  it  did  not 


J  ONE  TERM,  1862.  499 


Dobson  V.  Finley. 


appear  that  the  grantee,  Beard,  or  tlie  surveyor,  were  dead, 
and  so  that  this  recital  in  the  grant,  which  must  be  consider- 
ed as  *'  hearsay  evidence,"  coining  eitlier  from  the  one  or  the 
other,  was  not  competent.  The  misapprehension  proceeds  from 
not  distinguishing  between  evidence,  by  reputation,  and  hear- 
say evidence,  as  it  is  called.  It  is  settled  that  botli  kinds  of 
evidence  are  competent  in  questions  of  private  boundary  in 
this  State;  although  in  England  it  is  confined  to  questions  of 
public  boundary,  that  is,  the  lines  of  parishes  and  counties  and 
tlie  like  matters  of  public  evidence.  In  the  latter,  to  wit, 
hearsa}'  evidence,  it  is  necessary  as  a  preliminary  to  its  admis- 
sibility, to  prove  that  the  pci'son,  whose  statement  it  is  pro- 
posed to  offer  in  evidence,  is  dead ;  not  on  the  ground,  that 
the  fact  of  his  being  dead,  gives  any  additional  force  to  the 
credibility  of  his  statement,  but  on  the  ground,  that  if  he  be 
alive,  he  should  be  produced  as  a  witness  ;  whereas,  it  is  man- 
ifest, that  in  respect  to  evidence  by  reputation,  this  prelimi- 
nary question  cannot  arise  ;  therefoi-e,  proof  by  repu- 
tation, that  is,  recitals  in  old  deeds  and  grants,  inscriptions 
on  monuments  and  the  like,  has  always  been  deemed  com- 
petent, without  enquiring  as  to  whetlier  the  parties  to  such 
deeds  and  grants,  or  the  man  who  ingraved  the  inscription 
are  living  or  dead,  for  the  fact,  itself,  tends  to  establish  the 
reputation,  or  received  opinion,  in  regard  to  the  particular 
matter ;  for  instance,  in  our  case,  the  fact  that  is  recited  in  a 
grant  to  Beard,  issued  in  1798,  that  this  pine  is  Young's  cor- 
ner, is  evidence,  that  the  pine  was  known  and  admitted  to  be 
Young's  corner,  which  is  what  is  treated  of,  in  the  books,  as 
establishing  a  boundary  by  reputation,  and  differs  greatly 
from  "  hearsay  evidence." 

4.  The  call  for  a  white ,  with  a  blank  as  a  corner,  does 

not  present  a  question  of  ambiguity  of  description,  but  of  an 
imperfect  description  ;  in  which  case,  if  the  description  can 
be  made  perfect  by  an  implication  furnished  by  the  context 
of  the  instrument,  the  omission  may  bo  supplied  witiiout  fur- 
ther proof;  as  a  legacy  of  300  is  given  to  a  daughter,  to  be 
paid  out  of  the   proceeds  of  tiie  sale  of  a  tract  of  land,  the 


500  IN  THE  SUPREME  COURT. 

Dobson  V.  Finley. 

couit,  from  the  context,  supplied  the  omission  of  the  word 
"  dollars,"  and  so  made  the  description  perfect.  In  our  case, 
there  is  nothing  in  the  deed  to  enable  the  Court  to  infer  what 
sort  of  a  corner  was  intended  ;  a  white-oak,  or  white-ash,  or 
or  white-pine  ;  so,  without  further  aid,  the  omission  could  not 
be  supplied,  and  course  and  distance  would  govern.  But  we 
agree  with  his  Honor,  that  the  existence  of  marked  line  trees, 
crossing  the  maple  branch,  beyond  the  point  where  the  dis- 
tance gave  out,  which,  when  blocked,  corrresponded  in  age 
with  the  grant  and  that  at  the  point  of  intersection  of  the  course 
of  the  second  line,  and  the  reversed  course  of  the  third  line,  a 
white-6>a^  was  found  marked  as  a  corner  for  the  coming  and 
leaving  line,  in  respect  to  which,  no  practical  surveyor  can  be 
mistaken,  were  facts  proper  to  be  submitted  to  the  jury,  on 
which  to  warrant  them  in  coming  to  the  conclusion  that  the 
white-oak,  was  the  corner,  and  in  that  way  supply  the  omis- 
sion in  the  description. 

Per  Cukiam,  Judgment  aflBrraed. 


\*  Hon.  John  M.  Dick,  one  of  the  Judges  of  the  Superior 
Courts,  died  since  the  last  Term  of  this  Court,  and  Hon. 
Thomas  Ruffin,  Junior,  was  appointed  by  the  Governor  and 
Council  of  State  to  fill  his  place,  ad  interim. 


TO  THE  PRINCIPAL  MATTERS 

OP 

VOL.  8,  JONES'  LAW. 


ABATEMENT— PLEA  IN 
Vide  Endorsement,  2. 

ACTION. 

Vide  Contract,  7. 

ACTION  AGAINST  SHEEIFF  FOR  MONEy  COLLECTED 

ADMINISTRATION. 

1.  Debts  on  a  deceased  person,  assigned  to  one  after  the  death  of  s.ifh  np- 

2.  Where  an  administrator  with  a  will  annexed  died    hivinr.   \n    hi.   u      i 

njoney  arising  fron.  the  sale  of  land,  decreed  to  be    ol^  f?r  tL  L'rent 

ADVANCEMENT. 

^^bn^o^m7'  P"'  f  ''"'"  '"'^  ^'^^  P°-''^«^''^"°"  «f  l^is  child,  with  an  inten- 

AMENDMENT. 

1.  All  Courts  have  the  inherent  power  to  revise  and  amend  their  record, 
and  make  them  conform  to  the  truth.     Ashe  v.  Streator,2b6  ' 


502  INDEX. 

2.  The  power  of  the  county  courts  to  amend  their  records,  is  a  discretion- 
ary power,  subject  to  the  revisal  of  the  superior  court  on  an  appeal,  but 
the  Supreme  Court  has  no  power  to  examine  into  the  correctness  of  tht; 
exercise  of  such  discretion  in  the  courts  below.     Ihid. 

3.  Where,  however,  the  superior  court  erroneously  decided  that  a  county 
court  had  no  power  to  make  an  amendment,  it  was  held  that  this  Court, 
on  an  appeal,  would  correct  such  error.     Ih. 

4.  Where  a  verdict  was  rendered  for  more  than  the  amount  claimed  in  the 
writ,  in  a  case  where  the  measure  of  damages  was  certain,  and  there  was 
no  certain  criterion  by  which  to  show  a  mistake  or  misapprehension,  it 
was  held  not  proper  to  allow  an  amendment  of  the  writ.  Ashe  v.  De- 
Eosset  240. 

Vide  Compromise. 

ADVERSE  POSSESSION. 

Vide  Statute  of  Limitations,  1.  5. 

AFFIDAVIT  IN  ORDER  TO  BE  ALLOWED  TO  PLEAD. 

Vide  Ejectment,  3. 

ALLEGATIONS  IN  A  PETITION. 
Vide  Pleading,  G. 

ALIAS  WRIT. 

Vide  Statute  of  Limitations,  2. 

APPEAL. 

1.  No  appeal  will  lie  from  the  County  to  the  Superior  Court,  which  must 
necessarily  be  ineflfectual  for  the  purpose  for  which  it'  was  prayed. — 
Clark  v^  Latham,  1. 

2.  Where  a  court  refuses  to  quash  a  defective  indictment,  upon  the  ground, 
that  they  deem  it  sufficient,  an  appeal  will  lie,  and  the  judgment  will  be 
reversed  and  the  cause  sent  back,  that  the  Court  may  pi-oceed  with  the 
motion  according  lo  its  discietion.     Slate  v.  Brannen,  208. 

3.  One  who  is  not  a  party  to  a  bill  in  equity,  cannot  appeal  or  petition  to 
rehear  or  file  a  bill  for  a  review.     Thompson  v.  Cox,  311. 

Vide  A.mendment,  3  ;  Practice,  6. 

APPEAL  BOND. 

1.  Where,  upon  an  appeal  from  the  County  to  the  Superior  Court,  the  suit 
pended  for  three  terms  m  the  latter  court,  when  a  motion  was  made  to 
dismiss  the  appeal,  for  defects  in  the  appeal  bond,  it  was  held  that  the 
appellant  might,  as  a  matter  of  right,  file  a  sufficient  bond,  and  prosecute 
his  appeal,  and  that  the  order  of  the  Court  below  dismissing  the  appeal, 
■was  a  proper  subject  for  the  revision  of  this  Court.  March  v.  Griffith, 
264. 

2.  Appeal  bonds  sent  from  the  County  to  the  Superior  Courts,  are  made  by 
1st  and  10th  sections  of  ch.  4,  Revised  Code,  a  part  of  the  record  sent  up, 
and  cannot  be  questioned  by  plea  and  proof,  at  the  instance  of  the  sure- 
ties.     Whitehead  v.  Smith,  .351. 

APPRENTICE. 

Vide  Assault  and  Battery. 

ARBITRATION. 

1.  Where  an  arbitrator  disposes  of  matter  which  was  i-eferred  to  him.  and 
also  of  matter  not  referred,  and  the  two  are  in  their  nature  separable,  it 


INDEX.  5ti3 

■IS  the  (5nty  of  the  Court  to  givo  judgment  for  that  wliich  is  within  the 

terms  of  the  submission,  and  ipject  that  which   is  without       OriMn  v 

Hadley,  82. 
"2.  An  arbitrator  has  no  right  to  award  himself  a  fee  for  his  services,  unless 

the  power  to  do  so  is  expressly  contained  in  the  submission.     Jbid. 
Vide  Costs,  2. 

ARSON. 

1.  The  wilful  and  malicious  setting  fire  to  (he  house  of  another,  the  burn- 
ing of  which  is  only  a  misdemeanor,  will  become  a  capital  felony  ff  a 
dwelling-house  or  barn,  with  grain  in  it,  is  thereby  burnt,  where  such 
burniuL'  is  the  probable  consequence  of  the  first  illegal  act.  iSlaie  v. 
Laughlin,  354. 

2.  Upon  an  indictment  for  the  felonious  burning  o^  a  barn  with  grain  or  corn 
in  it,  a  prisoner  cannot  be  convicted  upon  proof  that  he  burntacriV;  with 
corn  in  it.     Jbid. 

3.  A  house  seventeen  feet  long  and  twelve  wide,  setting  on  blocks  in  a 
stable  yard,  having  two  rooms  in  it — one  quite  small,  used  for  storin<^  nub- 
bins and  refuse-corn  to  be  first  fed  to  stock,  and  the  other  used  for  stor- 
ing peas,  oats  and  other  products  of  the  farm,  is  not  a  barn  withm  the 
meaning  of  the  statute.  Rev.  Code.  chap.  34,  sec.  2,  the  burning  of  which 
is  made  a  ielony.     State  v,  LaiujhUn,  455. 

4.  A  house  eighteen  feet  long,  and  fifteen  wide,  built  of  logs  notched  up 
the  cracks  covei-cd  inside  with  rough  boards,  roofed  with  rough  boardsk 
with  a  good  plank  floor,  and  a -door  about  four  ft^et  high,  oon'taiuin<*-  at 
the  tune  of  the  burning,  a  quantity  of  corn,  peas  and  oats.  thoui<di  the 
oiily  building  on  (he  faim  used  for  storing  the  crop,yis  not  a  barnwithin 
the  meanius;  of  the  statute;  Rev.  Code,  chap.  34,  sec.  2.  State  v  Jim 
459. 

ASSAULT  AND  BATTERY. 

One  to  whom  a  fice  negro  is  hired  by  a  court,  for  the  payment  of  a  fine 
(Rev.  Coile,  ch.  107,  sec.  75)  has  no  right  to  beat  him  for  an  unlawful 
object,  or  of  malice.     State  v.  Norman,  220. 

ASSETS. 

Vide  Judgment  against  an  administrator;  Sale  of  land. 
ATTACHMENT. 

1.  The  meaning  of  the  Statute,  Revised  Code,  ch.  7,  sees.  27  and  28,  con- 
cernmg  liens  on  vessels  for  repairs,  &c.,  is  that  the  attachment  .given  for 
the  enforcement  of  the  lien,  must  be  issued  so  as  to  have  the  vessel  seiz- 
ed before  she  is  avowed  to  depart  from  the  port  or  place  of  repairs.  Iler- 
ri)if/lo7i  V.  The  Schooner,  I/ugh   Ghisholm.  4. 

2.  Where  an  attachment  was  sued  out  against  the  owner  of  a  vessel,  under 
the  27th  and  28th  sections  of  tho  7th  chapter  of  the  Revised  Code,'it  was 
held  that  a  prosecution  bond,  made  payable  to  the  "owner"  of  the  ves- 
sel, by  that  description,  was  sufficient.     Bryan  v.  Enteprise,  260. 

3.  The  6th  section  of  tlie  7th  chapter  of  the'Rev.  Code,  authorising  the 
sale  of  perishable  articles  Itn'ied  on  undor  an  attachment,  applies  only  to 
cases  o(  orginal  attachment  and  not  to  those  against  vessels  authorised  by  the 
27th  and  28th  sections  of  the  7th  chapter  of  the  Revised  Code,  and  it 
was  held,  therefore,  that  a  sale,  by  the  sheriff,  of  a  vessel  so  levied  on, 
under  this  act,  was  void,  and  did  not  discontinue  the  suit.     Ibid. 

ATTACHMENT  FOR  CONTEMPT. 

Where  a  person  was  appointed  by  court  a  commissiouer  to  sell  a  slave  iot 


504  INDEX. 

partition,  and  the  surety  taken  by  him^  although  reputed  good  at  tlie 
time  of  the  sale,  turned  out  to  be  insolvent  before  the  note  could  be  col- 
lected, it  was  held  that  an  attachment  for  a  contempt  for  not  paying  the 
money  into  the  court,  under  a  rule  for  that  purpose,  Avas  not  a  proper 
remedy,  if  indeed,  there  were  any,     Prichard  v.  OMham,  439', 

AUCTION  SALE. 

Vide  Statute  o?  Fraubs-. 

AWARD. 

1.  Where  an  action  of  trespass  Q.  C.  F.,  was  referred  to  arbi^tratora,  and 
they  found  the  title  to  the  locus  in  quo  in  the  plain-tiff,  and  assessed  dam- 
ages, it  was  heM  a  siaMcield  finding,  and  that  it  was  not  necessary  for 
them  to  fix  the  boundaries  between  the  parties.     Mdlard  v.  Mitchell,  153. 

2.  Where  a  suit  was  referred  to  arbitrators,  and  they  awarded  damages 
and  costs  to  the  plaintjff,  this  was  held  to  include  a  finding  of  all  issues  lu 
his  favor.     Ibid. 

3.  All  the  arbitrators  must  concur  in  making  an  award,  unless  it  is  provi- 
ded otherwise  by  the  terms  of  submission.     Mackey  v.  Neill,  214. 

Vide  Arbitration, 

BAIL. 

Whether  the  provision  in  chapter  10,  sec.  6,  of  the  Revised  Statutes,  re- 
quiring a  trial  of  the  pleaa,  entered  by  bail,  to  be  had  at  the  first  term,  is^ 
not  altered  by  the  Revised  Code,  ch.  11,  sec.  4. — Quere?  Glarh  v.  La- 
tham, 1. 

BAILMENT. 

Vide  Statute,  of  Limitati®!SS,  1 ;  Trover,  2.. 

BANK  NOTE.  • 

Vide  Indictment, 

BARN— WHAT  IS  A. 

Vide  Arson,  2;,.  %  4. 

BOND  OF  DEPUTY  SHERIFF, 
Vide  Practice,  2. 

BOND. 

Vide  Chairman  os"  Common  Schools. 

BOUNDARY.  • 

1.  Where  a  witness  testified  that  a  certain  unmarked'  pine  had  been  point- 
ed out  to  him  as  the  corner  of  a  grant,  by  an  old  man,  at  the  time  of  the- 
trial  deceased,  aad  there  were  five  particulars,  in  which  the' description,, 
in  the  grant,  was  supported  by  the  facts  proved,  it  was  held  erroneous- 
to  charge  the  jury,  that  there  was  no  evidence  of  the  location  of  the  grant.. 
McDonald  v.  McCasMll,  558-. 

2.  Whether  the  rule^  applie^ble  ir  (questions  of  boundary,  where  an  unnav- 
igable  stream  or  a  publie  hiigfciway  is  called  for,  that  is,  to  run  to  the  mid- 
dle of  the  stream,  cr  road,  m  applicable  So  a  piivate  way — quere?  Hays- 
V.  Ask&ur,  226. 

3.  Where  the  beginning  corner  of  a  deed  bon  a  private  avenue,  and  the- 
other  calls  of  the  deed  come  back  to  the  mouth  of  the  avenue,  and 
"  thence  down  the  said  avenue  to  the  beginning,"   "  reseFving  forever 


INDEX.  505 

twenty  feet  for  my  avenue,"  it  was  held  that  this  reservation  explained 
the  meaning  of  the  grantor  to  be  to  run  to  the  middle  of  the  avenue,  and 
thence  down  it  in  the  middle  to  a  point  opposite  the  beginning,  thence 
to  the  beginning.     Ibid. 

4.  Where  die  second  call  of  a  boundary  is  clearly  established,  the  first  may 
be  ascertained  by  running  the  course  rcveised,  and  measuring  on  it  the 
distance  called  for.     Dohxon  v.  Finley,  495. 

5l  \Miere  a  white  —  was  called  for  as  a  corner,  and  a  white-oak  was 
pointed  out  nearly  in  the  course,  b}'  a  marked  line  leading  to  it,  and  by 
other  cireimistances,  it  was  held  a  proper  question  to  leave  to  the  jury, 
whether  the  white-oak  W4is  the  corner  intended.     Ibid. 

Vide  Award,  I. 

<5ARNAL  KNOWLEDGE  OF  A  FEMALE  INFANT. 

In  an  indictment  under  our  statute,  Rev.  Code,  chap.  34,  sec.  5,  for  carnal- 
ly knowing  and  abusing  an  infant  female  imder  the  age  of  ten  years,  it 
was  }idd  error  in  the  Judge  to  charge  the  jury,  that  proof  of  emission  of 
seed  was  not  necessaiy  in  order  to  convict  the  prisoner.  State  v.  Oraju^ 
170. 

€A.  SA.  BOND. 

Vide  Certjokari,  3. 

OERTIORAEL 

1.  Where  a  petition  for  a  <,ertiorm-i  sets  out  that  the  petl'tictner  was  detain- 
ed at  hoHae  by  violent  sickness  when  his  cause  came  up  in  the  County. 
Court  fontrial,  and  afterwards,  during  the  whole  of  the  term,  and  that 
after  judgment,  his  counsel  pr<iyed  and  obtained  an  appeal  to  the  Supe- 
rior Court,  upon  condition  of  his  giving  security  for  tiie  appeal,  which  he 
failed  to  do,  by  reason  of  his  detention  at  home,  it  was  held  that  these 
facts  were  sufficient  to  rebut  the  idea  af  his  liaving  abandoned  his  right 
to  appeal,  and  entitled  him  to  a  certiorari.     SharjK  v.  JilcJSlwee,  115. 

2.  Where  a  judgment  had  been  rendered  against  a  surety  on  a  bail-boncl, 
in  the  County  Court,  and  he  filed  a  petition  fov  a. -certiorari  in  the  Supe- 
rior Court,  €tating  that  he  expected  to  be  able  to  discharge  himself  from 
liability  by  tlie  next  term  of  tJie  court  1^3'  a  surrender  of  his  principal,  it 
was  heJd  that  this  statement  did  not  lender  him  obnoxious  to  the  charge 
of  appealing  merely  for  delay.     Ibid. 

3.  Wheie  the  principal  obligor  in  a  ca.  sa.  bond  was  called,  and  failing 
to  appear,  judgment  was  rendered  against  his  surety,  it  was  held  that  the 
fact,  that  the  principal  was  sick  and  unable  to  attend  at  the  term  for 
which  he  was  bound,  did  not  entitle  the  surety  to  a.  cei-iiorarilo  have  the 
case  removed  into  the  Superior  Court.     Bias  v.  Arnold.  233. 

4.  Where  a  writ  of  lunacy  was  issued  by  a  county  court,  and  a  trial  had 
before  ajur}'.,  and  a  verdict  rendered,  tinding  the  subject  party  nan  corn- 
jpos,  which  was  confirmed  by  the  court  issuing  the  writ,  and  a  guardian 
appointed,  all  in  the  absence  of  the  said  party,  and  without  notice  to 
such  party,  and  it  appeared  that  the  party  immediately  applied  to  a 
•Judge  Xor  a  certiorari,  which  was  refused  on  an  erroneous  ground,  and 
the  party  under  advice  of  the  counsel  instituted  a  suit  in  equity,  whicli 
failed  for  the  want  ol  Jurisdiction,  and  the  party  swears  to  merits,  it  was 
held  on  a  petition  setting  forth  these  matters,  tiiat  the  petitioner  was  on- 
titled  to  a  certiorari  to  have  the  case  taken  into  the  superior  court. — 
Doweli  v.  Jaclcs,  387. 

CHAIRMAN  OF  COMMON  SCHOOLS. 

Where  .a  chairman  of  the  board  of  superintendents  of  common  schools,  ou 


'  INDEX. 

going  out  of  office,  gave  liis  own  note  instead  of  money  to  bis  successor, 
and  after  a  lapse  of  two  years,  being  reappointed,  received  the  same  note- 
back  as  part  of  the  school  fund,  and  gave  a  i-elease  in  full  to  his  predeces- 
sor, it  was  held  that  on  his  subsequent  feilure  and  inability  to  pay  such 
note,  he  and  his  sureties  were  liable  oa  the  bond  last  given.  Cooper  v. 
Cherry,  323. 

CLERK  AND  MASTER  IN  EQUITY. 
Vide  Statute  of  Lijiitations.  5. 

COLLECTION  OF  AN  ORDER  NOT  EMDORSED. 

The  presentment  and  colleclion  of  an  order  by  one  to  whom  it  was  not  en- 
dorsed, j)rima  facie  makes  the  collector  a  debtor  to  th-e  payee.  Bond  v. 
Hall,  M. 

COLOR  OF  TITLE. 

A  grant  froiri  the  State,  purporting  to  be  made  in  obedience  to  acts  of  the 
General  Assembly,  providing  {'or  the  relief  of  persons  whose  title  deeds, 
had  been  destroyed  by  the  Uirning  of  the  courthouses,  &c.,  of  Hertford 
and  Montgomery  counties,  v,-as  held  to  be  color  of  title.  Kron  v.  Hin- 
son,  347. 

COxMMISSIONERS  TO  LAY  OFF  COUNTY  SEAT. 
Vide  Mandamus,  1,  2,  3. 

COMMISSIONER  TO  SELL  SL.-WES. 

Vide  x\TTACnxMENT  FOR  CONTEWr-T. 

COMMON  COUNTS. 
Vide  Contract,  4,  5. 

COMPETENCY  OF  EVIDENCE. 
Vide  EviDJ':iNCE.  18. 

COMPETENCY  OF  AN  EXECUTOR  IN  FAYOR  OF  A  WILL. 
Vide  Evidence,  22. 

COMPROMISE.. 

A  court  cannot  strike  out  an  entry  of  a  compromise  in.  a  suit  and  order  ii 
for  trial,  because  it  has  been  imperfectly  entered,  or  because  it  has  not 
been  performed.  The  proper  way  is  to  amend  nunc  fw&'iunc,  so  as  to- 
make  ihe  record  speak  the  truth,  and  then  to  enforce  the  perlorn)anceof 
tlie  compromise  by  attachment  or  other  means^  usual  in  sucli  cases.  Cox 
V.    Cox,  48  Z. 

CONDITION. 

Vide  Treaties  with  Indians,  2. 

CONSTRUCTION  OF  AN  INSTRUMENT. 

Where  an  instrument  is  susceptible  of  two  constructions,  by  one  cf  wliich  it 
will  take  elfect,  and  by  the  other,  it  will  be  inoperative  for  the  want  of  a 
subject-matter  to  act  on,  it  shall  receive  that  construction  by  which  it 
will  take  eBect;  for  it  cannot  be  supposed  that  the  parties  intended  tado 
a  nugatory  act.     Hunter  v.  Anthony,  385. 

CONSIDERATION-MONEY— RELEASE  OF. 

Vide  Estoppel,  1. 
CONSIDERATION. 

Vide  Contr.\gt.  12. 


INDEX.  507 

CONSTABLE. 

Vide  Pleading,  2. 

CONTESTED  ELECTION. 

Vide  Costs,  3. 
CONTRACT. 

1.  Where  A  sent  to  B  a  letter,  stating  that  if  B  and  C  wished  to  I  lire  any 
ne<;;roes  for  the  ne.xt  year,  he  would  assig7i  as  their  secvriit/,  it  was  held 
that  the  plaintiff  having  hired  certain  slaves  to  B  and  C  on  the  faith  of 
this  letter,  A  was  liable  on  his  refusal  to  sign  a  note  tor  the  hire,  anl  that 
B  and  C  having  failed  to  pay  at  the  end  of  the  credit,  (having  become  in- 
solvent) the  nieasiue  of  damages  was  the  price  agreed  to  be  paid  for  the 
hire.     Sleight  v.   Watstm,  10. 

2.  Held  fmther,  that  no  demand  on  B  and  C  was  necessarj'  previously  to 
bringing  suit.     Nor  was  one  necessary  to  be  made  on  At     Ibid. 

3.  Held  furth'er,  that  the  plaintiff's  having  received  a  note  for  the  hire  from 
B  and  C  after  A's  refusal  to  sign,  was  no  discharge  of  the  latter.     Ibid. 

4.  Where  plaintiff  had  contracted  to  sei've  defendant  for  ten  months,  for  a 
certain  sum,  and.  before  the  expiration  of  that  time,  defendant  wrongful- 
ly dismissed  him,  and  pianitiff  sued  upon  the  common  count  in  assump- 
sit, it  was  held  that  he  could  recover,  upon  this  count,  for  the  time  he  had 
actually  worked.     Madden  v.  Porterfiekl,  IGG. 

5.  And  it  was  further  held^  that,  had  the  plaintiff  inserted  a  count  upon  the 
special  contract,  he  might  have  recoveix'd  for  the  whole  time.     Ibid. 

6.  it  is  the  province  of  a  jury,  to  afBx  a  value  to  services,  according  to  their 
nature  and  extent,  as  proved  ;  and  it  is  not  necesssary  for  witnesses  to 
estimate  their  value  in  mone}'.     Ibid. 

7.  Where  a  slave  was  hired,  by  parol,  for  a  sum  certain,  and  before  the  ex- 
piration of  the  term,  the  owner  took  the  slave  out  of  the  hirer's  possession 
against  his  will,  and  the  hirer  brought  an  action  of  trover  agamst  the 
owner,  and  recovered  and  received  the  value  of  the  slave's  services  for 
the  unexpired  part  of  the  term,  it  was  held  in  an  action,  brought  by  the 
owner  against  the  hirer,  to  recover  the  price  stipulated,  that  the  hirer, 
having  got  the  lull  benefit  of  the  contract,  could  not  treat  it  as  rescinded, 
and  thereby  avoid  his  obligation  under  it.      Odom  v.  Bryan,  21L 

8.  A  parol  agreement  between  an  executor  and  a  purchaser  of  the  property 
.     ^  of  the  estate,  that  the  latter  shall  pay  all  of  a  particular  class  of  debts  due 

by  the  testator,  does  not  entitle  one  of  that  class  of  creditors,  to  sustain  a 
suit  against  such  puarchaser.     Styron  v.  Bell^  222. 

9.  Where  a  plaintiff  declared  upon  a  special  contract  to  provide  slaves,  hir- 
ed to  work  upon  a  railroad,  with  good  accommodations,  also  on  the  im- 
plied contract  of  bailment  to  provide  them  with  ordinary  accommoda- 
tions, it  Was  held  that  the  lodging  of  the  slaves,  in  the  dead  of  winter,  in 
huts  built  of  poles  and  railroad  sills,  without  door  shutters,  and  without 
ohinking  in  tlie  cracks,  which  were  large,  and  which  huts  were  proved  to 
be  inferior  to  others  ordinarily  used  for  such  purposes  on  railroads,  was  a 
breach  of  the  contract  as  alleged  in  both  counts,  and  entitled  plaintiff  to 
recover.     Lane  v.   Washiiifjion,  248. 

10,  A  contract  lor  erecting  a  public  building,  made  with  a  committee  ap- 
pointed by  the  justices  of  a  county,  when  performed  by  the  contractor, 
must  be  fulfilled  by  the  justices,  although  early  in  flie  progress  of  the 
work  they  had  dismissed  the  committee,  and  endeavored  to  rescind  the 
the  order  appointing  it,  and  had  given  notice  to  the  contractor  not  to 
proceed.     Ale  Coy  v.  Justices  of  Harnett,  272. 

IL  Where,  a  contractor  to  erect  a  public  building,  after  the  dismission  of 
the  committee  throus;h  whom  the  contract  was  made,  and  a  rescission  of 


508  INDEX. 

the  order  appointing  it,  and  a  notice  by  the  justices  not  to  go  on  with 
the  building,  still  continued  to  act  under  such  committee  and  by  its  di- 
rections, made  material  departures  from  the  specifications  in  the  con- 
tract, it  was  held  that  though  he  completed  the  building  within  the  time 
specified,  yet  he  was  not  entitled  to  recover  the  price  agreed  to  be  paid. 
Ihid. 
12.  The  existence  of  a  claim,  in  equity,  is  a  sufficient  consideration  for  a 
promise  to  pay  money  or  any  other  thing,  and  such  promise  may  be  re- 
covered on  at  law.  Hudson  v.  Critcher,  485. 
Vide  Amendment. 

CONVERSION. 
Vide  Trover,  ] . 

COSTS. 

1.  The  costs  allowed,  against  bail,  notwithstanding  a  surrender,  &c.,  (Rev. 
Code,  ch.  11,  sec.  10,)  do  not  include  such  as  are  incurred  on  account  of 
an  improper  and  ineffectual  appeal.      Clark  v.  Latham,  1. 

2.  Where  a  cause,  pending  in  cour't,  is,  by  rule  of  said  court,  referred  to  ar- 
bitrators, who  proceed  to  act  and  make  an  award,  as  to  all  the  matters 
in  controversy,  in  favor  of  one  of  the  parties,  without  saying  any  thing 
as  to  the  costs,  the  successful  party  has  no  right  to  have  a  judgment  of 
the  court,  for  the  recovery  of  his  costs.     Debruh  v.  Scott,  73- 

'3.  A  contested  sheriff's  election  before  the  justices  of  a  county  court,  is  not 
an  action  within  the  meaning  of  the  Revised  Code,  chapter  31,  section 
75,  which  entitles  the  successful  party  to  -recover  costs.  Patterson  v. 
Mvrray,  278. 

4.  In  a  matter  of  a  public  nature,  the  officer,  who  acts  for  the  State,  does 
not  pay  costs  to  the  other  party.     Houston  v.  Neuse  Riv.  Nav.  Co.  476. 

COURSE  AND  DISTANCE— REVERSAL  OF. 
Vide  Boundary,  4. 

COURT-HOUSES  WHICH  HAVE  BEEN  BURNT. 

Vide  Color  of  title. 
COURT  OF  EQUITY— SALE  BY. 

Vide  Land  considered  as  money  ;  Sale  of  land,  2. 
COVENANT. 

Vide  Pleading,  1  ;  Quiet  Enjoyment,  1,  2,  3. 
COVENANT  OF  QUIET  ENJOYiMENT. 

1.  Where  a  vendee  brought  an  action  against  an  intruder,  and  failed  to  re- 
cover, but  not  on  account  of  a  defect  of  the  vendor's  title,  (which  was 
sufficient  to  sustain  the  action)  it  was  heM,  in  an  action  on  his  covenant 
for  quiet  enjoyment,  that  this  did  not  amount  to  a  breach  of  the  coven- 
nan  t.      Wilder  v.  Iceland,  85. 

2.  A  covenant  of  quiet  enjoyment  in  a  deed,  conveying  a  fee,  is  not  broken 
if  the  covenantor  had  title  to  a  life-estate,  though  his  title  failed  as  to  the 
remainder.     Ibid. 

■  3.  Beld  further,  that  withholding  of  his  title-deed  on  the  occasion  of  the 
trial,  by  the  covenantor,  (it  not  having  been  registered)  was  no  breach  of 
the  covenant.     Ibid. 

4.  Note  the  alteration  of  the  phraseology  of  the  statute  of  uses  in  Revised 
Statutes,  chapter  43,  section  4,  and  in  Revised  Code,  chapter  43,  sec.  6, 
and  quei-e  as  to  its  effect.     Ibid. 

5.  In  an  action  on  a  covenant  for  quiet  enjoynaent,  it  is  no  defence  that  the 


INDEX. 

covenantor  had  a  life-estate  in  the  land  at  the  time  of  making  the  deed, 
if  such  life-estate  be  fallen  in.  and  the  covenantee  has  been  evicted  by 
title  paramount.     Parker  v.  Richardson^  452. 
Vide  Quiet  enjoymicnt,  1,  2,  3. 
CREDITOR— GREATEST. 
Vide  Administrator,  1. 
CREDIBILITY. 

Vide  Evidence,  8,  10,  11,  16,  17;  Witness. 
CROSS-EXAMINATION. 
Vide  Evidence,  8,  19. 
CURTESY. 

Vide  Statute  of  Limitations,  7. 
DAMAGES. 
Where  a  part  of  certain  machinery  was  consigned  to  defendant  as  plaintifif's 
agent,  to  be  forwarded  to   him,  and    defendant   negligently    detained  it, 
whereby  the  whole  machinery  was  kept  idle,  it  was  held  tliat  the  measure 
of  damages  was  not  what  might  have  been  made  by  the  machinery  during 
the  time  it  was  idle,  but  it  was  the  legal  interest  on  the  capital  invested,  the 
price  of  the  hire  of  hands  necessarily  unemployed  during  the  lime,  the 
cost  of  sending  lor  the  missing  machinery,  and  all  other  damages  that  re- 
sulted, necessarily,  Irom  delendant)s   negligence.     Foard    v.    Rail  Road 
Co.  235. 
Vide  Amendment,  4  ;  Contract,  1,  4,  5,  G  ;  Escape  ;  Quiet  enjoyment,  2  ," 
Trespass  q.  c.  f.  1. 

DEAF  MUTE. 

Vide  Trial  of  a  Non  Compos. 
DECLARATIONS  OF  A  TENANT  AS  TO  HIS  POSSESSION. 

Vide  Evidence,  25. 
DECLARATIONS  BY  A  PARTY. 

Vide  Evidence  6 ;  Fraud,  1. 
DECLARATIONS  OF  A  WIFE. 

Vide  Evidence,  21. 
DECLARATIONS  OF   A  PRISONER. 

Vide  Evidence,  23. 

DECREE  FOR  DIVISION  OF  SLAVES. 

1.  A  report  by  a  commissioner  in  equity,  dividing  slaves  among  tenants  in 
common,  followed  by  a  decree  conlirming  the  same,  passes  the  right  of 
property  from  the  date  of  the  report,  and  will  enable  a  party,  acquiring 
such  ri;ght,  to  maintain  trover  for  a  conversion  between  the  date  ot  such 
report  and  the  final  decree.     Dixon  v.   Warters,  449. 

2.  Held  further,  that  all  the  parties  to  a  suit  for  the  partition  of  property  are 
estopped  to  deny  the  right  of  their  fellow-takers  under  such  decree.   Ibid. 

DEED. 

1.  Where  the  intention  of  the  parties  to  a  deed  is  manifest  on  its  face,  the 
Court  in  giving  a  construction  to  doubtful  provisions,  will,  if  possible,  ef- 
fectuate such  intention.     Burnes  v.  Haijharqer,  76. 

2.  Where  a  wife,  after  marriage,  supposing  the  whole  intcre.st  in  her  lan<l 
was  in  her,  made  a  conveyance  to  a  trustee  for  her  sole  and  separate  use, 


610  INDEX. 

to  vvhicli  the  husband  signed  as  a  party,  and  by  vaiioiis  clauses  manifest- 
ed a  concurrence  in  her  act,  but  did  not  profess  directly  to  convey  any 
estate,  in  which  deed,  it  is  recited  that  ten  dollars  was  paid  by  the  trus- 
tee to  the  wife,  it  was  held  that  this  raised  a  use  from  the  husband  to  the 
trustee,  which  wvis  executed  by  the  statute,  and  in  that  way  tiie  hus- 
band's interest  passed  to  the  trustee.     Ibid. 

Vide  Estoppel,  1. 
DEED  OF  GIFT. 

A  deed  of  gift  of  slaves,  made  in  1823,  to  a  married  woman,  {ovh^v  natural 
life,  and  after  her  death,  to  the  heirs  lawfulh/  beyotien  of  her  body,  passes 
tlie  absolute  property  in  such  slaves  to  her  husband.  Harrell  v.  Davis, 
359. 

DEED  OF  AN  INFANT— CONFIRMATION  OF. 

Vide  Pleading,  7. 
DEMAND. 

1.  Where  it  appeared  that  the  plaintiff,  who  lived  in  Virginia,  had  put  a 
note  into  the  hands  of  the  defendant,  who  collected  it,  and  at  the  time  of 
employing  another  to  make  demand,  plaintiff  stated  that  he  liad  once  be- 
fore sent  the  defendant's  receipt  over  and  had  got  nothing,  it  was  held 
that  this  did  not  amount  to  proof  that  a  demand  had  been  made  more 
than  three  years  before  the  bringing  of  the  suit,  so  as  to  put  the  statute 
of  limitations  in  motion.      Brooks  v    Walters.  428. 

2.  An  action  of  debt  on  a  sheriff's  official  bond  for  money  collected,  and  a 
nonsuit  therein,  is  a  snlHeieni  demand  to  enable  the  plaintiff  to  sustain 
an,  action  on  the  case  tor  the  same  cause  of  action.  Fagan  v.  Willium- 
son^  433. 

Vide  CoNTR.\CT,  2. 

DEPARTURE  FROM  TERMS  OF  A  CONTRACT. 
Vide  Contract. 

DESCENT  CAST. 

Vide  Statute  of  Ltmitations,  7. 

DETINUE. 

Where  an  action  of  detinue  was  brought  for  a  female  slave,  and  the  case 
coming  to  tlie  Supreme  Court,  by  appeal,  ajudgiiient  was  rendered  here 
for  the  recovery  of  such  slave,  it  was  held  that  the  plaintiff  was  entitled 
to  a  scire  facias  from  this  Court,  for  the  defendant  to  show  cause  why 
execution  should  not  issue  for  a  child  of  such  female  slave,  bo-n  after  the 
commencement  of  the  suit  and  before  the  final  judgment  (Jaies  v. 
Whiffield,  266. 

DILIGENCE  IN  AN  AGENT. 

Where  the  plaintiff,  the  defendant  and  another,  shipped  produce  on  the 
same  boat,  consigned  it  to  a  factor,  who  sent  the  defendant  a  draft  on  New 
Yoik  for  the  whole  amount,  which  he  sold,  and  receivins;;  the  money  for 
it,  endorseti  it  in  his  own  name,  but  the  paper  coming  back  to  him  dis- 
honored, the  defendant  refunded  the  money,  and  was  unable  to  get  it 
from  tlie  factor,  after  using  due  and  proper  diligence,  it  was  held  that  the 
defendant  was  in  no  wise  liable  for  the  loss  of  the  debt.  Bland  v.  Scott, 
100. 

DILIGENCE— REASONABLE. 

Vide  Certiorari,  4;  Attachment  for  contempt;  Negligedce,  5;  Sher- 
iffs Bond. 


INDEX.  Ill 

DRAINING  LANDS. 
Yiile  Pleading,  6. 

DRAY. MEN. 

Tide  Evidence,  15. 
EJECTMENT. 

1.  In  trespass,  q.  c.  f.,  the  principle  that  where  neither  party  has  possession 
of  a  lappage,  the  snpetior  title  draws  to  it  the  constructive  possession  and 
exchidos  the  constructive  possession  of  the  infierior  title,  may  be  asserted 
by  one  wiio  is  a  stranger  to  such  superior  title,  against  the  suit  of  one 
claiming  nnder  tlie  inferior  title.     McLean  v.  Miirchiaon,  38. 

2.  Where  both  parties  in  an  action  of  ejectment  clain)  title  under  the  same 
person,  the  delendant  cannot  defeat  the  action  by  showing  title  inatliird 
per,«on,  unless  he  lias  acquiied  such  outstanding  title,  or  connects  himself 
with  It.     Brown  v.  Smith.  331. 

3.  The  act  of  18r>(),  oha>"ter  14,  does  not  antiiorise  a  defendant  in  ejectment, 
where  the  plainliif  lias  filed  an  aflidavit,  liiat  such  defendant  entered  as^ 
his  tena'.it,  to  plead  without  giving  security  for  costs,  by  filing  an  affida- 
vit iliat  lie  is  unable,  on  account  of  his  poverty,  to  do  so.  Lorvks  v. 
Carier,  381. 

4.  One  wlio  conies  in  as  landlord  to  defend  an  action  of  ejectment,  cannot 
object  that  no  notice  to  quit  has  been  given  to  the  original  defendant. — 
Fonst  V.  Trice,  490. 

Vide  NoTicic  to  Quit,  1,  2 ;  Trijspass,  q.  c.  f. 
ENDORSEMENT. 

1.  It  is  no  olijection  to   the   endorsement  of  a  bond,    thai  the  presumption 
•      oi  payment  Ironi  the  lapse  of  time,  was  appHcable  to  it,  when  the  endorse- 
ment was  made.     McLean  v.  KcDugald,  383. 

2.  An  asj^ignment,  witiicut  consideration,  passes  the  title,  and  where  such 
assignment  was  made  to  evade  the  law  reirulating  the  venues  of  actions, 
the  objection,  to  be  good  must  be  taken  by  plea  in  abatement.     Ibid. 

ENLISTMENT  OF  A  MINOR. 
Vide  H.vBEA.s  Conrrs. 

ENTRY  ANEW. 

Vide  Trespass  q.  c.  f.,  2. 

ESCAPE. 

In  an  action  of  debt  on  a  sheriff's  bond  for  the  escape  of  a  debtor  imprison- 
ed under  a  ca.  sa.,  the  jury  are  not  bound  to  give  the  whole  sum  due- 
from  such  debtor,  but  should  give  the  damages  really  sustained  by  the 
escape.      Willey  v.  jEure,  320. 

ESTOPPEL. 

1.  An  acknowledgement  by  the  bargainor  in  a  deed,  that  he  has  received  the 
consideration  money,  is  a  bar  in  a  conit  of  law,  to  any  action  for  the  re- 
covery thereof.     Mendenhall  v.  Parish,  105. 

2.  Where  a  person  purchases  a  chattel  from  one  who  is  not  the  owner  of  it, 
and  it  is  admitted  by  the  parties,  or  found  bj'  the  jury  as  a  fact,  that  the 
purchaser  was  induced  to  make  the  purchase  by  the  declarations  or  acts 
of  the  true  owner,  the  latter  will  be  estopped  from  impeaching  the  trans- 
action.    Mason  v.   WiUiams,  478. 

Vide  Diccree  for  division  of  slaves;  Trespass,  1. 
EVIDENCE. 

1.  A  receipt  signed  by  a  sheriff  for  a  sum  of  money,  "to  be  applied  to  the 


»12  INDEX. 

payment  of  a  judgment,"  obtained  against  the  defendant  at  a  previous 
term  of  a  court  of  the  county  in  which  the  defendant  hved,  and  of  which 
the  maker  of  such  receipt  was  sheriff  at  the  time,  is  no  evidence  that  an 
execution  was  in  his  hands  when  the  money  was  paid  to  him.  Coving- 
ton V.  Buie^  31. 

2.  A  registered  copy  of  a  clerk's  bond  may  be  read  without  other  proof, 
and,  of  course,  the  original,  when  proved  and  registered  as  the  acts  pro- 
vide, may  also  be  read  thus  without  being  proved  at  the  trial.  Short  v. 
Currie,  42. 

3.  It  seems  at  common  law,  official  bonds  were  not  subjected  to  the  same 
tests  of  strict  proof  and  cross-examination  as  instruments  between  pri- 
vate persons.     Ibid. 

4.  Where  a  fact,  proposed  to  be  proved  by  a  party,  is  admitted  by  the  op- 
posite side,  It  is  not  error  in  the  Court  to  refuse  to  let  it  be  proved  by 
witnesses.     Pridgen  v.  Bannerman,  53. 

5.  Where,  in  an  action  brought  to  recover  the  value  of  certain  slaves,  the 
plaintiff  sought  to  set  aside  a  conveyance  of  them  to  a  daughter,  and 
offered  evidence  to  show  that  the  donor  had  grand-children  who  were 
poor  and  in  need  of  her  bounty,  ic  was  held  competent  for  the  defendant 
to  introduce  in  evidence,  in  order  to  rebut  this  testimony,  a  conveyance 
by  the  donor  of  other  propsrty  to  these  grand-children.  Hughes  v.  Deb- 
nam,  127. 

6.  Where  the  question  between  the  parties  was,  whether  the  plaintiff  had 
agreed  with  a  third  party  to  take  him  for  the  performance  of  the  contract 
sued  on,  instead  of  tiie  defendant,  and  the  tender  of  a  sum  of  money  by 
such  third  party,  and  its  refusal  and  the  concomitant  expressions  of  the 
plaintiff,  were  relied  on  against  him,  it  was /ieM  that  a  receipt  prepared  by 
him  and  offered  as  the  condition  on  which  lie  would  receive  the  money, 
was  competent  evidence.     Myers  v.    Cherry,  144. 

7.  In  order  to  show  that  a  witness  in  a  cause  was  excited  at  the  horrible 
crime  alleged  against  a  slave,  and  was,  therefore,  not  fully  to  be  relied  on, 
it  wa.s  held  competent  to  ask  him,  on  cross-examination,  whether  he  had 
not  taken  up  and  whipped  other  negroes.     State  v.   Sam,  150. 

S.  In  order  to  weaken  the  foice  of  a  witness'  evidence  on  cress-examination, 
it  was  held  competent  to  show  his  temper  and  feeling  towards  the  cause, 
independently  of  any  prejudice,  or  ill-will  towards  the  accused,  personal- 
ly.    Jhid. 

9.  Where  it  was  sought  to  prove  the  value  of  plaintiff's  services  during  a 
term  of  seven  months,  it  was  held  an  immaterial  question  for  the  defend- 
ant's counsel  to  ask  witness  the  value  of  such  services  for  half  an  hour, 
during  which  witness  saw  plaintiff  at  work.     Madden  v.  Purterjield,  166. 

10.  Where,  in  a  suit  upon  an  apprentice  bond,  the  question  was,  whether 
the  relator  was  of  age  at  the  bringing  of  the  suit,  and  his  mother  was 
introduced  to  testily  as  to  his  age,  it  was  held  that  a  recoi'd  of  births, 
made  in  the  family  IBible,  under  the  dictation  of  the  m(<fher,  by  one  since 
deceased,  several  years  after  the  birth  of  the  relator,  but  before  he  was 
bound  out,  was  admissible  as  evidence  to  corroborate  the  mother's  state- 
ment.     Wi.se7nun  v.  Cornish,  218. 

11.  There  is  no  rule  of  law,  that  the  fact  of  a  witness"  standing  in  the  rela- 
lation  of  mother  to  one  of  the  parties,  naturally  gives  a  bias  to  her  state- 
ment, by  affecting  her  recollection,  but  such  relation  is  a  matter  for  the 
consideration  of  the  jury  alone.     lb. 

12.  Where  a  receipt  was  given,  on  the  delivery  of  a  quantity  of  rice  at  a 
mill,  setting  forth  the  quantity  and  terms  of  deposit,  it  was  held,  in  an 
action  for  the  loss  of  the  rice  by  fire,  that  the  plaintiff  could  not  resort  to 
proof  of  the  quantity  aliunde,  without  proof  of  his  inability  to  produce 
the  leceipt.     Ashe  v.  DeRossett,  240. 


INDEX.  513 

13.  Where  the  owner  of  rice,  which  had  been  burned  at  a  mill  went  to  a 
partner,  who  was  not  copfnizant  of  the  state  of  the  business  and  demand- 
ed a  <riven  quantity  of  rice,  to  which  he  replied,  that  "it  was  nothin<^ 
more  than  he  expected,'  it  was  held,  that  this  was  no  adinis<5ion  as  to 
tho  quantity.     Ibid. 

14.  Where,  in  an  action,  against  the  owner  of  a  dray  in  the  town  of  Wil- 
mington, brought  to  recover  the  value  of  a  trunk  lost  from  the  defend 
ants  dray,  it  w#s  sought  to  charge  the  defendant  as  a  common  carrier  it 
was  htld  competent  for  the  plaintiff  to  prove  that  it  was  the  duty  of  dray- 
men in  Wilmington  to  carry  baggage.     Herring  v.    UUetj,  270 

15.  Whether  the  owner  of  a  lost  trunk  can  be  admitted  to' prove  by  his 
own  oath,  the  contents  of  a  trunk  lost.— ^?/ere.?     Ibid.  '     J      ' 

16.  Where  the  question  was,  whether  B,  who  occupied  tlie  land  in  contro- 
versy, did  so  as  the  tenant  of  A,  the  plaintiff,  and  B  testified  that  he  wa^ 
carried  upon  tlie  premises,  and  left  there  fraudulently  and  treacherously 
m  order  to  get  him  off  of  another  tract  of  land,  and  that  he  never  held  a^ 
the  tenant  of  A,  it  was  held  competent  for  him  to  state,  also,  in  order  to 
strengthen  his  testimony,  that  his  occupation  was  as  the  tenant  of  the 
defendants.     Foust  v.  Trice,  290. 

17.  Where  A  .^vears  that  B,  C  and  D  had  an  important  conversation  to- 
gether, and  D  swears  that  no  such  conversation  took  place  it  was  Md 
that  the  rule  giving  preference  to  affirmative,  over  negative,  testimony 
does  not  apply,  for  there  being  a  direct  contradiction,  the  jury  must  be 
guided  by  other  tests  in  ascertaining  the  truth.  Reeves  v.  Poimlexier" ^08 

18  \  here  land  has  been  sold  as  the  property  of  A,  under  execution  and 
he  has  received  a  portion  of  the  sum  raised,  which  was  over  and  above 
the  cal  ot  the  execution,  he  cannot  be  a  witness  for  the  purchaser  in  an 
action  lor  the  recovery  of  the  laud.     Brown  v.  Smith,  331 

19.  Matters  elicited  on  a  cross-examination,  which  are 'only  admissible  to 
weaken  the  force  of  the  testimony  in  chief,  ought  not  to  go  to  the  rurv 
for  a  different  purpose.     Lidher  v,  Skeeji,  356. 

20.  A  jury  in  estimating  character  are  to  take  the  testimory  of  wit- 
nesses, who  are  supposed  to  be  able  or  capable  of  reflecting  in  general 
terms,  the  judgment  of  the  public.     Ibid. 

21.  The  declarations  of  a  woman  made  shortly  after  the  birth  of  a  child 
that  it  been  born  alive,  are  not  competent  to  prove  her  husband's  title  to 
an  estate  by  the  curtesy.      Gardner  v.  Khiils,  375 

22.  Under  the  act  of  Assembly,  Revised  Code,  chapter  119,  section  9  one 
named  as  executor  in  a  script,  propounded  as  a  will,  though  named  as 
plaintitl  in  an  issue  devtsavit  vel  non,  may  be  examined  as  a  witness  for 
the  caveator  as  well  as  for  the  propounder.     Pa7ineU  v.  Scongin,  408. 

23.  No  declarations  of  a  prisoner  made  after  the  commission  of  a  homicide 
as  to  the  manner  of  the  transaction,  that  are  not  part  of  the  res  gestts,  are 
admissible  tor  bim.     State  v.   Brandon,  463.  ^        >     ^ 

24.  An  occupant  is  incompetent  to  give  evidence  for  the  defendant  in  an 
TTi^e'ldO^  '"^  ''^''"^''''  ^^"^  '''"'^'  ""^  '^^"""^  ^'^  '^  ^"  possession.     Foust 

25.  The  declarations  of  an  occupant,  as  to  the  manner  in  which  he  came 
into  possession  of  the  land,  in  question,  are  competent,  as  evidence  against 
the  detendant,  in  an  action  of  ejectment.     Ibid. 

Vide  Holograph  will;  Presumption  or  tact;  Rape,  1;  Secret  trust. 
EXECUTION— SATISFACTION  OF. 
Vide  Evidence,  1. 

EXECUTOR— WARRANTY  BY. 

Vide  Judge's  charge,  5 ;  PleadinG;  5. 


514  INDEX, 

FALSUM  IN  UNO,  &c. 
Vide  Witness. 

FALSE  RETURN. 

1.  The  sheriff's  return  on  process  in  his  hands,  "  not  to  be  found  in  my 
county,"  implies  that  the  person  to  be  reached  by  the  process,  was  not 
to  be  found  after  due  search,  and  if  the  fact,  thus  implied,  be  untruly 
stated,  the  return  is  a  false  one.     Tomlinson  v.  Long^  469. 

2.  Where  a  person,  to  be  summoned  by  a  subpoena,  was  at  his  home,  in 
the  sheriff's  county-,  for  fifteen  days  preceding  the  day  of  the  return  of 
the  process,  though  the  sheriff  lived  twenty-five  miles  from  him,  and 
though  he  was  informed  that  such  person  would  continue  out  of  the 
county  during  all  that  time,  ic  was  held  he  was  liable  for  the  pe'  alty  for 
making  a  false  return,  in  saying  that  he  was  not  to  be  found.     Ibid. 

3.  A  return  made  by  a  sheriff,  that  is  false  in  fact,  although  the  officer  was 
mistaken  in  the  matter  as  to  which  he  made  his  return,  will,  neverthe- 
less, subject  him  to  the  penalty  for  a  false  return.  Albright  v.  Tapscott, 
473. 

FAMILY  RECORD. 
Vide  Evidence,  10. 

FIERI  FACIAS— WHEN  RETURNABLE. 

The  provisions  of  the  Revised  Code,  chapter  31,  section  50,  requiring  the 
return  of  all  writs,  process,  &c.,  to  be  made  on  the  first  day  of  the  term, 
to  which  they  aie  returnable,  does  not  apply  to  executions  or  writs  of 
fieri  facias.     Ledbetter  v*  Arledge,  475. 

FRAUD. 

1.  A  naked  declaration  of  a  debtor  in  embarrassed  circumstances,  that  an 
assignment  of  a  note,  theretofore  made  by  him  was  bo)ia  fide  and  for 
valuable  consideration,  is  no  evidence,  as  against  creditors,  that  such  was 
the  fact,  and  such  assignment  was  held  to   be  void.      Orifiin  v  Tripp,  64. 

2.  Where  an  alleged  testator,  in  a  paper  wi'iting,  propounded  as  his  will, 
devised  and  bequeathed  certain  property  to  the  child  of  his  housekeeper, 
a  white  woman,  which  child  was  proven  to  be  a  mulatto,  but  which  the 
mother  had  induced  him  to  believe  was  his,  it  was  held  that  tliis  furnish- 
ed no  evidence  to  support  the  allegation  that  the  will  was  obtained  by 
fraud  and  undue  influence.     Howell  v.  Troutman,  304. 

Vide  Secret  trust. 
FRAUDULENT  CONVEYANCE 

1.  Where  a  father,  who  was  largely  indebted  and  insolvent,  made  a  deed 
for  his  land  to  his  son,  who  was  under  age  and  received  from  him  money, 
which  he  had  earned  as  day  wages,  in  "art  payment,  and  his  note  for 
the  remainder  of  the  price,  such  deed  was  held  to  be  voluntary  and  void 
as  against  creditors.      Winchester  v.  Reid,  377. 

2.  A  bond  given  as  a  pretext  to  enable  one  person  to  set  up  a  claim  to  the 
property  of  another,  so  as  to  defraud  the  creditors  of  that  other,  is  void, 
■even  as  between  the  parties  to  the  same.     Poivell  v.  Inman,  436. 

FREE-NEGRO. 

Vide  Assault  and  Battery  ;  Rape,  2. 

GAMING. 

Only  those  who  bet,  and  those  who  play  at  a  game  of  cards  where  there 
is  betting,  at  some  of  the  prohibited  places,  are  liable  to  be  indicted  un» 
der  the  statute,  chap.  34,  sec.  75,  Rev.  Code.     State  v  Brannen,  208. 


INDEX.  515 

GIFT— RECLAMATION  OF. 

Where  A  handed  over  a  sum  of  money  to  B,  for  the  use  of  C,  and  took  from 
B  a  certificate,  in  wiiting,  expressing  that  it  was  the  sum  given  to  C  in  A's 
will,  and  oblio-in?  B  to  pay  the  interest  annnually  to  C,'"it  was  held  that 
A  had  no  right  to  demand  and  recover  the  money  frorn  B.  Parker  v. 
Ricks,  447. 

GUARANTOR— NOTICE  TO. 

It  is  a  rule  *f  law,  that  one  liable  in  case  another  does  not  pay,  is  entitled 
to  notice  of  the  default  of  the  primary  debtor  before  suit  can 'be  brouo-ht 
against  him,  and  it  forms  no  exception  to  the  rule,  that  such  primary 
debtor Avas  insolvent  at  the  date  of  tiie  original  transaction,  or  becameso 
afterwards.     Reynolds  v.  Ednerj,  406. 

HABEAS  CORPUS. 

1.  A  soldier  who  is  under  arrest,  and  in  confinement  for  a  violation  of  or- 
ders, cannot  procure  his  discharge  by  means  of  a  writ  of  habeas  corpus 
on  the  allegation  that  he  was  an  infant  at  the  time  of  enlistment.  Nor 
can  he  or  his  guardian  raise  that  Question  before  the  civil  authorities, 
while  he  is  in  custody,  and  amenable  for  trial  before  a  military  tribunal 
In  the  matter  of  GraliavK  416. 

2.  Whether  a  minor  of  the  age  of  twenty  years,  who  enlisted  under  the 
provisions  of  the  act  entitled  "an  act  to  raise  1(»,0{;0  State  troops," 
and  has  taken  and  subscribed  the  oath  prescribed  for  enlistment,  is  ent'i- 
tled  i£>  his  discharge  on  the  gionnd  of  his  nonage,  and  that  he'  enlisted 
without  the  consent  of  his  guardian — qiiere  ?     Ibid. 

HERTFORD  AND  MONTGOMERY  COUNTIES. 
Vide  Color  of  title. 

HIGHWAY. 

A  road  only  one  mile  long,  and  from  ten  to  fifteen  feet  wide,  leading  from 
a  public  highway  to  a  church,  and  used  by  the  people  of  the  neighbor- 
hood for  sixty  years  in  going  to  and  from  the  chuich,  and  which  con- 
nected with  a  country  road  leading  to  a  mill  in  the  neighborhood,  and  to 
a  railroad  station,  but  which  had  never  been  under  the  charge  of  an 
overseer,  nor  worked  as  a  public  highway,  is  not  a  public  highway  so  as 
to  subject  one  to  indictment  for  obstructing  it.     State  v.  McDaniel,  284. 

HIRE  OF  A  SLAVE. 
Vide  Contract,  7. 

HOLOGRAPH  WILL. 

That  a  hologiaph  script  was  seen  among  the  valuable  papers  and  effects  of 
the  decedent  eight  months  before  his  death,  is  no  evidence  that  it  was 
found  there  ai  or  after  his  death.     Adams  v.  Clark,  56. 

HOMICIDE. 

1.  If  a  party  deliberately  kill  another  to  prevent  a  mere  trespass  to  proper- 
ty, he  is  guilty  of  murder.     State  v.  Brandon,  463. 

2.  The  law  does  not  recognize  any  moral  poioer  as  compelling  a  man  to  do 
what  he  knows  to  be  wrong.     Ibid. 

HUSBAND  AND  WIFE. 
Vide  Deed,  2  ;  Parties. 


516  INDEX. 

INDIAN  RESERVATIONS. 

Vide  Treaties  with  Indians,  1,  2. 

INDICTMENT. 

An  indictment,  charging  the  stealing  of  a  bank-note  of  a  certain  denomi- 
nation and  value,  without  setting  forth  by  what  authority  such  note  was 
issued,  is  not  sufficient  to  authorise  judgment  on  a  conviction.  State  v. 
Broivn,  443. 

INFANT— DEED  OF. 

1.  An  infant  who  has  executed  a  deed  for  land,  cannot  make  the  deed  void 
or  valid  by  any  act  of  his  done  while  under  age.  McCormic  v.  Leggett, 
425. 

2.  To  make  the  deed  of  an  infant  valid,  he  must,  after  corning  of  age,  do 
some  deliberate  act  by  which  he  takes  benefit  under  the  deed,  or  ex- 
pressly recognizes  its  validity.     Ibid. 

INFANT— NOTE  OF. 

Vide  Fraudulent  Conveyance,  1. 

INQUISITION  OF  LUNACY  NOT  CONCLUSIVE. 

An  Inquisition  of  lunacy  is  not  conclusive  against  a  person  dealing  with  a 
supposed  lunatic ;  but  he  may  show  that  at  the  time  of  the  'Contract, 
such  supposed  lunatic  had  sufficient  capacity  to  make  it.  Parker  v.  Da- 
vis, 460. 

INSANITY. 

The  insanity  which  takes  away  the  criminal  quality  of  an  act,  must  be  such 
as  amounts  to  a  mental  disease,  and  prevents  the  accused  from  knowing 
the  nature  and  quality  of  the  act  he  is  doing.     State  v.  Brandon,  463. 

ISSUE  OF  FACT. 
Vide  Practice,  5. 

JAIL  FEES. 

The  master  of  a  slave  committed  to  jail  on  the  warrant  of  a  justice  of  the 
peace  for  an  oftence  cognizable  in  the  Superior  Court  is  liable  for  jail-fees, 
although  the  grand  jnry,  upon  an  enquiry,  may  have  refused  to  make 
presentment  against  such  slave.     State  v.  Peter  and  Jess,  346. 

JUDGMENT. 

Vide  Verdict,  1,  2. 

JUDGMENT  AGAINST  ADMINISTRATOR— EFFECT  OF. 

In  an  action  against  an  administrator,  on  his  administration  bond,  for  the 
non-payment  of  a  judgment  previously  rendered  against  him,  such  judg- 
ment is  conclusive  evidence  against  him,  both  as  to  the  debt  and  the  ex- 
istence of  assets.     Bo7id  v.  Billups,  423. 

JUDGMENT— SUMMARY. 

The  statute.  Revised  Code,  chapter  29,  section  5,  intends  that  motions  for 

summary  judgment  aganst  delinquent  sheriffs,  &c.,  shall  originate  in  the 

county  courts.     Buchanan  v.  McKenzie,  95. 
Vide  Penalty  against  Sheriffs. 


INDEX.  51T 

JUDGE'S  ClIARGK 

1.  To  leave  a  question  to  the  jury,  without  some  evidence  bearing  upon 
the  iTiatter.  and  upon  which  they   raight  base  their  verdict,  is  error. — 

.   Bond  V.  //«//,  14. 

2.  A  judge  annot  bo  required  to  give  instructions  to  the  jury  upon  an  as- 
sumption oCliicts,  not  supported  liy  evidence.     8iate  v.  €hrtf,  25. 

3.  Where  there  are  several  possibditics  of  fact,  different  from  the  inference 
intended  to  be  drawn  from  the  evidence  oflered,  a  Judge  is  not  required 
to  note  one  such  possibility,  and  specifically  bring  it  to  the  attention  of 
the  jury.     Ibid. 

4.  On  an  issue  before  tiie  Court,  there  is  no  error  in  refusing  to  give  par- 
ticular weight  to  a  rebutting  fact,  and  where  the  Judge  thought  the  tesh 
tiniouy  pre[)onderaling  against  said  fact,  it  was  not  error  to  say  of  such  fact 
that  it  was  immaterial.      Pridyen  v.  Bannerman^  53. 

5.  Upon  a  question  of  warranty  or  no  warranty,  it  waa  held  to  be  error  in 
a  Judge  to  charge,  that  the  fact  that  the  alleged  warrantor  was  actmg  in 
lUo  capacity  of  an  executor,  was  not  a  matter  for  the  consideration  of 
t hi' jury.     Brake  V.  Bnincs,   122. 

»;.  Where  the  charge  of  a  Jmlge  is  in  favor  c^f  a  party,  such  party  cannot 
make  it  a  ground  of  objection.     Hughes  v.  Debnam.  127. 

7.  Junes  are  at  libeity  to  iufei-  the  motives  of  parlies  from  their  conduct 
therefore  where,  in  an  action  for  an  assault  and  battery,  it  was  proved 
that  the  defendant  came  to  the  house  of  the  plaintiff,  with  whom  he  had 
been  before  on  friendly  terms,  and  said  to  him,  "  How  dare  you  send  a 
letter  to  my  house,"  and  immediately  as-siulted  him,  it  was  held  error  in 
the.Judge  to  charge  tlie  jmy,  liiatthere  was^io  evidence  thai  the  letter 
was  olVensive  or  insulting,  and  liiat  they  could  not  infer  that  it  was  sc. 
Bond  V.   Warren,  191. 

Vide  Boundary,  1;  Plkaping,  4. 

JURISDICTION. 

1.  The  county  courts  have  no  jurisdiction,  hy  bill,  at  the  suit  of  creditors,  to 
convert  a  purchaser  of  land  into  a  trustee,  on  the  allegation  of  fraud  and 
collusion.     Thompso7i  v.  Cox,  311. 

2.  The  powers  of  a  court  of  limited  jurisdiction  cannot  be  enlarged  by  im- 
plication.    Ibid. 

3.  The  jurisdiction  of  the  county  court  to  order  a  partition  among  tenants 
in  common,  does  not  extend  to  money.     Billups  v.  Riddich.  163. 

4.  A  petition  against  an  executor  for  a  filial  portion,  &c.,  will  not  lie  for 
money  or  other  property  delivered  by  him  to  a  legatee  for  life.     Ibid.. 

Vide  Practice,  5  ;  Road. 

JURY—QUESTION  FOR. 
Vide  Boundary,  5. 

JUSTICES— CONTRACT  BY. 
Vide  Contract,  lOj  11. 

JUSTICE'S  TRIAL. 

Vide  Waiver,  2. 
JUS  POSTLIMINII. 

Vide  Trkspass,  q.  e.  f.  2. 

LAND  CONSIDERED  AS  MONEY. 

Where  real  estate,  belonging  to  an  infant,  has  been  converted  into  person- 
alty by  a  sale,  under  the  decree  of  Court  for  a  division,  the  fund  will  con- 

2 


518  INDEX. 

tinue  to  have  the  character  of  realty,  and  be  transmissible  according  to 
the  law  of  descents,  until  a  different  character  is  impressed  upon  it  by 
some  act  of  the  owner.     Jones  v.  Edwards,  336. 

LAPPAGE. 

Vide  Ejectment,  1. 

LARCENY. 

Where  the  prosecutor  lost  a  carpet  bag  on  the  public  highway,  and  direct- 
ed one  to  get  it  for  him,  and  he  did  so  as  his  bailee,  but  concealed  the  ar- 
ticle, and  denied  having  found  it,  it  was  held  that  this  was  bat  a  breach 
of  bailment,  and  not  larceny.     State  v.  England,  399. 

LIABILITY  OF  PUBLIC  OFFICERS  CIVILLY. 

The  justices  of  a  county  are  not  responsible  to  the  owner  of  property  for 
injuries  to  it,  occasioned  by  defects  in  public  bridges  under  their  control. 
Kinsey  v.   Tlie  Magisti-aits  of  Jones,  18G. 

LIMITATION  IN  REMAINDER. 

1.  A  legacy  given  immediately  to  a  class,  vests  absolutely  in  the  persons 
composing  that  class  at  tiie  death  of  tlie  testator  ;  and  a  legacy  given  to 
a  class  subject  to  a  life-estate,  vests  in  the  persons  composing  tliat  class 
at  the  death  ol  the  testator,  but  not  absolute!}',  foi-  it  is  subject  to  open 
so  as  to  make  room  foi-  all  fiersons  composing  the  class,  not  only  at  the 
death  of  the  testator,  but  also  at  the  falling  in  of  the  intervening  estate. 
Mason  v.    White,  421. 

2.  Where  une  thus  included  in  a  class  with  an  ir.tervenmg  estate,  died  be- 
fore the  falling  in  of  sucli  estate,  there  is  no  ground  for  holding  that  his 
estate  was  divested  by  this  event.     Ibid. 

3.  Where  one  devised,  in  1828,  to  a  trustee,  to  the  use  and  benefit  of  a  wo- 
man, foi'  her  life,  remainder  to  the  use  of  all  her  children,  it  was  held  that 
by  force  of  the  statute  of  uses,  the  legal  estate  for  life,  was  executed  in 
the  woman,  and  that  it  made  no  difference  that  chattel  property  was 
conveyed  to  the  trustee  by  the  same  will.      Wilder  v.  Ireland,  85. 

4.  Held  further,  that  the  legal  estate  in  the  remainder,  by  force  of  the  same 
statute,  passed  to  the  children  she  had  at  the  time  of  the  devise,  subject 
to  the  participation  of  such  as  she  might  thereafter  have.     Ibid. 

Vide  Deed  of  gift. 

LUNACY  AS  A  DEFENSE. 

The  modern  decisions  have  qualified  the  old  doctrine,  tliat  a  man  shall  not 
be  heard  to  allege  his  own  lunacy  or  intoxication,  and  these  are  now 
held  to  be  a  defense  to  acts  done  under  their  prevalence.  Morris  v.  Clay^ 
21G. 

MANDAMUS. 

1.  Where  an  act  of  Assembly,  establishing  a  new  county,  appointed  com- 
missioners, by  name,  to  ascertain  a  site,  and  ourchase  a  tract  of  land  for 
a  county  town,  and  required  the  justices  of  the  county  to  appoint  com- 
missioners to  lay  oft' lots  and  sell  ihem,  it  was  held  not  to  be  a  sufficient 
return  to  an  alternative  mandamus  to  compel  the  justices  to  the  perfoim- 
ance  of  their  duties,  to  allege  that  the  locating  commissioners,  in  dis- 
charging their  duties,  were  prompted  by  improper  motives.  Lander  v. 
McMillan,  174. 


INDEX.  519 

2.  Where  an  act  of  Assembly  establishing  a  new  county,  made  it  the  duty 
of  certaui  commissioners,  to  purchase  a  tract  of  land,  and  having  taki>ii  a 
deed  for  it,  to  file  such  deed  in  the  office  of  (he  County  Court, 'and  then 
for  the  justices  of  the  county  to  do  certain  acts  prescribed,  it  was  held 
that  the  justices  were  not  entitled  to  any  other  nolice  that  the  commis- 
sioners had  acted  than  the  filing  of  such  deed  ;  especially  as  no  notice  is 
required,  by  the  act,  to  be  given  them.     Ihid. 

3.  The  proper  way  for  the  justices  of  a  county  to  make  return  to  a  man- 
damus, is  for  them  to  convene,  and  a  majority  being  present,  to  fi.x  nnon 
the  facts  they  mean  to  rely  on  by  way  of  defense,  and  appoint  someone 
of  their  body  to  make  affidavit,  and  to  do  all  other  things  required  by 
the  proceeding.     Ibid. 

MONEY  ARISING  FROM  SALE  OF  LAND. 
Vide  Administrator,  2. 

MISPRISON. 

A  commission  to  take  a  deposition  that  recites  that  it  issued  from  the  "su- 
preme" court  of  McDowell  county,  for  a  suit  pending  in  McDowell  Su- 
j5erior  Court,  authenticated  by  the  signature  of  the  clerk,  and  seal  of  the 
Superior  Court  of  McDowell  county,  is  so  palpal.le  a  misprison,  as  to  au- 
thorise it  to  be  regarded  as  a  commission  issuing  A-om  the  superior  court. 
Dohson  V.  Finhy,  495. 

■KEaLIGENCE. 

L  Where  machinery  was  consigned  to  the  agent  of  a  rail-road,  to  be  for- 
warded to  the  plaintiff,  over  such  road,  aiicl  it  was  negligcnll'v  detained 
for  a  time,  it  was  held  that  the  defendants  were  not  liable  a"s  common 
carriers  for  this  neglect,  but  only  as  bailees.  Foard  v.  Rail  Road  Co , 
235. 

2.  Where  several  pieces  of  machinery  were  shipped  to  the  defendants' 
agent  to  be  forwarded  to  phiintiff,  and  they  were  described  in  the  bill  of 
lading  as  '■'  three  pipes  in  one  bundle,  and  two  single  pipes."  and  they 
wefe  delivered  by  the  .ship's  agent  to  the  defendants'  agent,' who  had  a 
copy  of  the  bill,  and  by  some  means,  the  direction  on  one  of  the  single 
pipes  became  illegible,  and  it  was  not  forwarded,  it  was  held  that  these 
fact<!  were. sufficient  to  subject  the  defendant  for  neghgence  as  a  bailee. 
Ibid. 

3.  Where  a  hired  slave  was  taken  ill  with  typhoid  fever,  and  the  hirer,  not 
knowing  the  nature  of  the  disease,  sent  him  on  the  railroad  cars,  in  plea- 
sant w(-ather.  forty  miles,  to  a  place  deemed  more  fovorable  to  the  pa- 
tient, where  he  remained  one  day,  in  proper  hands,  without  a  physician's 
being  called  in,  and  was  then  sent  off  three  miles  further  to  the  care  of 
his  master,  it  appearing  that  the  ascertainment  of  the  existence  of  that 
disea,se,  was  a  matter  of  skill,  and  not  within  the  scope  of  ordinary  in- 
telligence, it  was  held  that  although  the  disease  was  aggravated  by  the 
treaimeiu  of  the  patient,  yet,  that  these  fiicts  did  not  show  such  a'want 
of  proper  care  and  prudent  management  as  to  subject  the  hirer  to  dama- 
ges lor  the  deatli  of  the  slave.     Haden  v.  Rail  Road  Co.  3G2. 

i.  Whi-re  a  deaf  mute  slave,  who  was  walking  on  a  railroad  tvnck  from  the 
direction  of  an  approaching  train,  was  killed  by  the  train,  it  not  appear- 
ing that  the  engineer  knew  of  the  slave's  infirmity,  and  it  appearing  that 
the  usual  warning  was  given  by  the  steam  whistle  for  oneendowed'with 
hearing  to  have  made  his  escape,   it  was  held  that  the  company  was  not 

_  liable  lor  the  loss.     Poole  v.  Rail  Road  Co.  408. 

0.  Where  a  railroad  agent  received  goods  into  the  compaay's  ware-houscj 


520  INDEX. 

at  a  country  station,  which  was  an  ordinary  wooden  house,  which  he 
kept  fastened  in  the  night  time  with  iron  loclcs,  bolts  and  bars,  also  in 
the  day  time  in  the  same  manner,  it  appearing  that  the  agent  resided 
two  hundred  yards  from  the  Avare-house,  it  Avas  held  to  be  ordinary  care, 
and  that  the  company  was  not  liable  for  the  loss  of  the  goods-  by  theft. 
Neal  V.  Rail  Road  Qompany,  482. 

NONSUIT. 

Where  one  agreed  to  become  surety  for  another,  on  condition  that  the- 
creditor  should  bring  suit  within  a  reasonable  time,  and  he  did  so  shortly 
after  the  expiration  of  the  credit,  but  was  nonsuited  on  the  ground  of 
not  appearing  by  counsel  or  otherwise,  it  was  held  that  another  suit 
brought  miraediately  after  such  nonsuit  was  sustainable.  Oibhs  v.  Wil- 
liams, 391. 

NOTICE  TO  QUIT. 

1.  Where  one  rented  a  plantation  for  a  year,  and  having  joined  the  fences 
of  another  plantation,  owned  by  him,  to  the  fences  of  the  rented  place, 
and  then  at  the  end  of  the  year,  quit  without  removing  the  fence,  placed 
there,  and  after  five  years  entered  again,  it  Avas  held  that  he  Avas  not  en- 
titled to  notice  to  quit,  before  bringing  suit  against  him.  Borden  v.  Bell, 
294. 

2.  Where  a  tenant  entered  into  occupation  of  premises  under  an  express 
lease  from  month  to  month,  and  he  continued  the  occupation  for  more 
than  tAvo  years,  there  is  no  reason  Avhy  he  should  be  considered  as  a 
tenant  from  year  to  year,  and  thus  be  entitled  to  six  months  notice  to 
quit.     Jones  v.    Willis,  430. 

3.  What  notice  a  tenant  from  month  to  month  is  entitled  to — Quere.    Ibid. 

NOTICE  TO  CONSIGNEES. 
Vide  Nkgligence. 

NUDUM  PACTUM. 

Where  the  owner  of  a  rice  mill,  Avho  had  a  turn  at  his  OAvn  mill,  agreed  to 
let  a  customer  have  it,  and  there  is  no  particular  inducement  shown,  or 
Other  explanation  given,  it  was  held  that  the  agreement  was  a  nudum 
pactum.     Ashe  v.  BeRosseti,  240. 

OFFICIAL  BOND  OF  SHERIFF. 
Yide  Action  against  sheriff. 

OFFICIAL  BOND. 

Vide  Ea' iDENCE,  2,  3 ;  Pleading,  2. 

OFFICER— PUBLIC. 
Vide  Costs,  4. 

OFFSPRING  OF  A  FEMALE  SLAVE. 
Vide  Detinue. 

ONUS  PROBANDI. 

Vide  Presumption  of  fact. 

ORDER  OF  SALE. 

Vide  Power  of  Court  to  set  aside  proceedings. 


INDEX.  631 

OVERSEER  OF  ROAD. 

The  statute.  Revised  Code,  chapter  101,  sectioivli,  gives  the  overseer  of  a 
road  (acting  in  good  faith)  power  to  cut  poles,  &c.,  on  any  land  adjoin- 
ing his  section,  and  he  is  not  confined  to  the  land  immediatel}^  adjoining' 
the  spot  where  the  work  is  to  be  done.      Collins  v.  Creecy,  333.  "^ 

PARTNERS. 

Where  an  obligation  was  signed  and  scaled  by  one  of  two  partners  and  sio'n- 
ed,  only,  by  the  other,  it  was  held  to  be  the  deed  of  the  former,  and°the 
simple  contract  only  of  the  other,  and  that  the  latter  might  be  sued  in 
assumpsit  alone  on  this  contract     Davis  v.    Qohton,  28. 

Vide  Plkauixg,  3. 

PARTIES. 

1.  In  an  action  against  a  ferryman  for  negligently  carrying  plaintiff's  wife 
across  his  ferry,  whereby  f\\e  was  injured,  it  is  not  necessary  that  the 
wife  should  be  made  a  party  plaintiff.      Crump  v.  McKay,  32. 

2.  An  action  against  a  guardian  for  the  penalty  of  .$200,  for  iiiring  the  pro- 
perty of  his  ward  privately,  is  not  required  to  be  brought,  in  the  name  of 
tlie  State,  but  is  properly  brought  in  the  name  of  an  indiridual  undertak- 
ing to  sue  for  the  same.     Norman  v.  Dunbar,  317. 

Vide  AiM'i'AL,  3;  Di;ci:i;k  fou  division-  of  slavks;  PLKAmxc,  1,  3,  5. 

PAYMENT  TO  A  SHERIFF. 
Vide  Evidence,  1. 

PENALTY  AGAINST  A  GUARDIAN. 

Yide  Part  IKS,  2.  j, 

PENALTY  AGAINST  A  SHERIFF. 

1.  A  judgment,  for  the  penalty  authorised  by  the  latter  clause  of  the  5th 
sectum  ot  the  29th  chanter,  of  tiie  Revised  Code,  against  a  d.^liuquent 
sheriff,  &c.,  is  only  an  incident  to  the  main  judgmeiu,  against  him  and 
his  sureties,  authorised  by  the  former  part  of  the  same  section  ;  upon  a 
reversal,  tlierefore,  of  the  latter,  tlie  former  fklls  with  it.  Jhtchannn  v 
McKenzie,  03. 

Vide  JfDGftiENT — Summary. 

PENALTY  AGAINST  AN  EXECUTOR. 

1.  Where  an  executor  gave  a  part  of  a  stai-din>r  crop,  for  hauling  the  re- 
imund.n-  to  tlie  ciih.  it  was  held  not  to  subject  him  to  the  pennlty  impos- 
e(i  hv  selling  a  deceased  person's  estate  otherwise  than  at  public  auctio-:. 
McDamel  v.  Johns,  4L4. 

PETITION  AGAINST  AN  INQUISITION  OF  LUNACY. 
Vide  CERTroRAUi,  4. 

PLE.\DING. 

a.  Though  a  covenant  be  with  two  or  more,  jointly,  yet  if  the  interest  and 
(;aiise  ot  action  ot  the  covantees  be  several,  the  covenant  shall  be  taken 
to  be  several,  and  each  of  the  covenantees  may  bring  an  action  for  his 
particular  damage,  notwithstanding  the  words  of  the  covenant  are  joint- 
Little  v.  Hohhs,  179. 

■2.  Where  a  debtor  delivered  to  his  .creditor,   without  endorsement,  a  bond 


522  INDEX. 

on  a  third  person  as  collateral  security,  with  an  a_2:reement,,  that  it  shoullf 
be  returned  if  not  collected,  and  the  creditor  took  from  a  constable  a  re- 
ceipt for  the  paper  for  collection,  as  being  received  from  him,  (the  credit- 
or) it  was  held  in  a  suit  aj^ainst  the  constable,  on  his  oflieial  bond,  for 
failing  to  collect,  that  the  creditor  was  the  proper  person  to  declare  as 
relator.     Chipley  v.  Aibea,  204. 

3.  A  judgment,  in  favor  of  "  L.  &.  M."  trading  as  a  firm,  is  valid,  and  is 
competent  evidence  in  a  suit  brought  by  the  constituents  of  such  firm,  in 
their  individual  names  set  out  in  full.     Lash  v.  Arnokl  206. 

4.  Where  a  declaration  contams  two  counts,  and  testimony  is  given  as  to 
both,  and  the  Judge  charges  as  to  both,  and  a  general  verdict  is  given 
for  the  plaintiff,  if  one  of  the  counts  be  defective,  or  an  error  has  been 
committed  as  to  one  of  them,  the  defendant  is  entitled  to  anew  trial. 

Wilson  v.   Taium,  300. 

5.  An  action  against  a  person  as  "  executor"  for  an  act  done,  or  a.  contract 
made  by  hiin  after  the  death  of  his  testatator,  cannot  be  sustained,  and 
the  words  '"  as  executor"  rejected  as  surplusage ;  as  may  be  done  where 
the  action  is  for  the  party  on  his  own  possession,  and  these  words  are 
impropei'ly  inserted.     Beaiy  v.    Gingles,  302. 

C.  Two  or  more  separate  p^roprietors  of  land,  cannot  sustain  a  joint  petition 
for  a  ditch  to  drain  their  lands,  without  alleging  that  a  common  ditch 
would  drain  the  lands  of  all  the  petitioners.     Shaw  v.  Biirfoot,  344. 

7.  Matter  wliipb  does  not  affect  the  title,  but  only  affords  an  objection  to 
the  further  prosecution  of  the  suit,  as  it  is  then  constituted,  as  marriage 
or  death,  or  the  plaintiff's  taking  possession,  must  be  pleaded  or  other- 
wise specially  brought  to  the  notice  of  the  Court ;  but  matter  that  goes 
to  affect  the  title  as  the  confirmation  of  an  infant's  deed,  may  be  given  ia 
evidence  under  the  general  issue.     McCormic  v.  Leggeit,  425. 

Yide  Contract,  4,  5  ;  Quiet  enjoyment,  3. 

PLEDGE. 

In  order  to  constitute  a  pledge,  there  must  be  evidence  that  the  property  was 
delivered  for  that  purpose  to  the  pawnee.     Thompson  v.  AndreivSj  453. 

PONDING  BACK  WATER. 

1.  The  contin\)ance  of  an  overflow  of  land  by  the  ponding  back  of  water 
\         for  twelve  years,  does  not  justify  the  presumption  of  the  grant  of  an  ease- 
ment.     Griffi,n  V.  Foster,  337. 

2.  It  is  not  competent,  either  as  a  bar  to  the  action  or  in  mitigation  of  dam- 
ages, for  the  defendant  to  show  that  for  twelves  years,  neither  the  plain- 
tiff nor  the  party  from  whom  he  purchased,  had  complained  of  the  over- 
flow of  his  land.     Ibid. 

POSSESSION  OF  STOLEN  PEOPERTY. 

Possession  of  a  stolen  article,  raises  a  presumption  of  theft  by  the  possessor, 
only  in  case  siich  possession  is  so  recent  after  the  theft,  as  to  show  that 
the  possessor  could  not  well  have  come  by  it  otherwise  than  by  stealing 
if      Grerjory  v.  Richards,  410. 

POSSESSION  BY  BAILEE. 
Vide  Larceny. 

POWER  OF  COURT  TO  SET  ASIDE  PROCEEDINGS. 

1.  Where  two  J? /as  had  been  issued  to  different  counties,  on  the  same 
jndgmentj  and  one  had  been  satisfied  befoi^e  the  retura  term,  it  was  held. 


INDEX.  623 

in  order  to  vacate  a  sale  made  of  the  defendant's  land  on  the  return  day, 
under  the  second  execution,  to  be  competent  for  the  court  to  quash  and 
set  aside  sucli  second  execution,     Adams  v.   SmaUwood,  258. 

2.  Where  a,Ji.  fa.  on  a  justice's  judgment  was  levied  on  land,  and  the  reg- 
ular proceedings  had  in  the  county  court  for  subjecting  the  land,  and 
a  sale  made  by  virtue  thereof,  it  was  held  that  the  county  court,  at  a  sub- 
sequent term,  has  no  authority,  on  motion  to  sot  aside  the^i.  fa.  on  the 
justice's  judgment.     Henneii  v.  Taylor,  281, 

Vide  Practice,  6,  8. 

PRACTICE. 

1.  According  to  the  general  imdcrstanding  of  the  profession,  where  parties 
have  gone  into  trial  without  a  formal  declaration,  the  plaintiff  is  to  be 
taken  to  have  relied  on  one  suited  to  the  case  made  by  the  proof.  Davis 
V.    Gabion,  28. 

2.  The  statute,  Revised  Code,  chapter  31,  section  114,  authorising  a  refer- 
ence in  suits  upon  the  bonds  of  Sherifls  and  other  public  officers,  does 
not  embrace  the  case  of  a  bond  given  by  a  deputy  sheriff  for  the  indem- 
nity of  his  principal.      Willis  v.  Mdvi/n,  G2. 

3.  The  fact  that  a  county  court,  by  a  special  statute,  cannot  hold  jury  trials, 
does  not  deprive  a  party  of  his  common  law  right,  to  have  issues  of  fact 
tried  by  a  jury.     Buchanan  v.  McKeneie,  91. 

4.  Where  on  a  writ  of  error,  a  judgment  of  the  county  court,  refusing  to  let 
a  party  plead,  was  reversed  in  ihe  superior  court  for  error,  the  proper 
course  was,  to  send  the  case  back  to  the  county  court,  that  the  plaintiff, 
in  error,  might  be  restored  to  all  things  which  he  had  lost,  and  it  was 
held  to  be  error  for  the  Judge  to  give  leave  to  tho  party  to  enter  his  ple.n-^ 
in  the  Superior  Court.     Ibid. 

5.  Where  a  statute  requires  that  a  proceeding  shall  originate  in  the  county 
courts,  and  matteis  of  fact  are  involved  therein,  which  cannot  be  tried  in 
the  county  court,  because  jurisdiction  to  try  issues  of  fact  has  been  taken 
away  by  special  act  of  Assembly,  the  proper  course  is  for  the  issues  to  be 
made  up  in  the  county  court  and  transmitted,  by  an  order,  or  by  a  cer- 
tiorari, to  the  superior  court  for  trial.     Buchanan  v.  McKenzie,  95. 

6.  A  judgment  on  a  ca.  sa.  bond,  during  the  term  at  which  it  is  renilered, 
is  in  fieri,  and  may  be  set  aside  on  motion  ;  and  an  appeal  hom  the  Coun- 
ty to  the  Superior  Court,  from  an  order  setting  aside  such  judgment,  is 
erroneous,  and  will  be  dismissed  on  motion.  Williams  v.  Schimvierhorn, 
104. 

7.  A  suit  at  law.  cannot  be  removed  into  this  Court  by  consent.  Rodman 
V.  Davis,  134. 

S.  Courts  of  Pleas  and  Quarter  Sessions  have  power  to  set  aside  a  verdict 
and  judgment,  and  order  a  new  trial  during  the  terra.  Scaf  v.  Bufkin, 
IGl.' 

9.  The  power  of  the  Courts  of  Pleas  and  Quarter  Sessions,  to  set  aside  a 
verdict  and  order  a  new  trial,  is  entirely  discretionary,  and  the  propriety 
of  its  exercise  cannot  be  enquired  into  upon  appeal.     Ibid. 

10.  Where  a  petition  was  filed  for  partition  of  slaves  and  money,  and  there 
was  no  answer,  no  jutlgment  pro  confesso,  no  issue  made  up,  and  no  or- 
der made  for  setting  the  ca^-e  for  hearing,  it  was  held  erroneous  for  the 
Court  to  pass  a  decree.     BUlups  v.   Riddick,   1G3. 

11.  The  Act  of  18G1,  (2d  extra  session)  chapter  10,  section  4,  did  not  af- 
fect questions  as  to  the  continuance  of  causes  coming  betbre  a  court, 
whose  sittings  commenced  upon  Monday  of  the  week,  during  which,  the 
act  was  ratified.     Foust  v.  Trice,  490. 

Vide  Compromise  ;  Ejectment,  3 ;  Mandamus,   1,  2,  3 ;  Tkial  of  a  nolM 
COMPOS ;  Waiver,  2. 


524  INDEX. 

PEELIMINAET  ISSUE. 

Vide  Trial  of  a  Non  Compos. 

PRESUMPTION  OF  PACT. 

Where,  in  a  suit  for  the  loss,  by  fire,  of  a  quantity  of  rice,  deposited  at  a 
mill  to  be  beaten,  it  was  proved  that  the  general  custom  of"  the  mill  was 
to  give  a  receipt  to  the  owner  of  the  rice  delivered,  expressing  the  quan- 
tity and  the  terms  of  deposit,  it  was  held,  in  the  absence  of  pi-oof  that  the 
custom  was  departed  from  in  this  particular  instance,  that  there  was  a 
presumption  tliat  such  a  receipt  was  delivered  to  the  plaintiCf.  Ashe  v^ 
DeRosset,  240. 

PRESUMPTION  OF  HONESTY. 

,  1.  At  law,  the  rule  is,  that  fraud  never  is  presumed,  and  he  who  alleges  it 
must  prove  it.     Tomlinson  v.  Payne,  108. 
2.  It  may  be  taken  as  a  general  proposition,  that  every  man  is  presumed  to 
be  honesL  in  his  dealings,  until  the  contrary  is  proved.     Ihid. 

PRESUMPTION  OF  PAYMENT. 
Vide  Endorskment,  1. 

PRINCIPAL  AND  SURETY. 

Where  a  person  bid  off  a  parcel  of  wheat  at  an  auction  sale,  and  another 
person  came  forward  and  gave  his  note  for  it,  .in  compliance  with  the 
terms  of  the  .'Jale,  it  was  propeily  left  to  the  jury  to  determine  whether 
the  latter  intended  to  become  the  purchase,  or  lo  become  the  surety  of 
the  bidder.     Tliompson  v.  Andrews,  453. 

PRIVITY. 

Vide  Contract,  8. 

PROBATE  OF  A  WILL. 

Before  a  will  can  be  received  by  our  courts,  as  having  been  established  by 
a  tribunal  in  another  State,  it  must  appear  by  the  record  that  such  will 
was  duly  passed  on  by  it,  and  tliat  such  tribunal  was  the  court  of  pro- 
bate of  the  domicil.      Toionsend  v.  Moore,  147. 

QUASHING  AN  INDICTMENT. 
Vide  Appeal,  2, 

QUASHING  PROCEEDINGS. 

Vide  Power  of  court  to  set  aside  proceedings. 

QUIET  ENJOYMENT. 

1.  Where  a  grantor  of  land  in  anotber  State,  entered  into  a  covenant  of 
quiet  enjoyment,  and  after  his  death,  his  widow  recovered  of  the  grantor 
a  sum  certain  in  lieu  of  her  dower,  (the  law  of  the  State  subjecting  all 
lands  to  dower,  of  which  the  husband  was  seized  during  coverture)  it 
was  held  that  such  recovery  was  an  eviction,  and  the  covenantee  was 
entitled  to  recover  the  amount  paid.     Jachson  v.  Hanna,  188. 

2.  Where  a  covenantee  sued  on  his  covenant  for  quiet  enjoyment,  on  ac- 
count of  a  recovery  of  a  sum  certain  off  of  him  by  the  widow  of  the  cov- 
enantor for  her  dower,  and  it  appeared  that  only  a  part  of  the  recovery 
was  patd  when  the  suit  was  brought,  and  the   remainder  afterwards  and 


INDEX.  525 

before  the  trial,  it  was  held  that  the  covenantee  was  entitled  to  recover  the 
whole  snra.     Ibid. 
3.  The  action  on  a  covenant  of  quiet  enjoyment   is  transitory,  and  though 
entered  into  in  another  State,  may  be  sued  on  in  this  State.     Jhid. 

IJUO  WARRANTO. 

An  information  in  the  nature  of  a  writ  of  qrio  ivarranto  a,t;ainst  a  corpora- 
tion, to  have  its  privilej^es  declared  forfeited,  because  of  neglect  and  abuse 
in  the  exercise  of  them,  must  be  filed  in  the  name  of  the  Attorney  Gen- 
eral of  the  State,  and  cannot  be  instituted  in  the  name  of  a  solicitor  of  a 
judicial  circuit.     Houston  v.  Neuae  Rivfr  Nav.  Co,  47G. 

RAPE. 

1.  The  inference  arising  acrainst  the  truth  of  a  charge  of  rape,  from  a  long 
silence  on  the  part  of  the  female,  is  not  a  presumption  amounting  to  a 
rule  of  law,  but  is  a  matter  of  fact,  to  be  passed  on  by  the  jury.  State 
V.  Peter,  19. 

Yidc  CaK.VAL  KNOWl.KUGE  OF  A  FKMALE  INFANT. 

RAIL  ROADS  AS  COMMON  CARRIERS. 

1.  Where  hvight  is  carried  on  a  railroad,  from  staliuu  to  station,  il  the  own- 
er is  not  ready-to  receive  it  at  its  destination,  liie  duty  of  the  airrier  is 
discharged  by  placing  it  in  the  ware-house  of  the  com])any  without  giv- 
ing notice  to  the  ownei'  or  consignee.     Neul  v.   Rail  Road  Co.  4S'2. 

2.  It  is  certainly  not  required  of  the  ware  house  men.  at  a  railroad  sta'.ion, 
to  notily  consignees,  living  at  a  distance,  of  Uie  arrival  of  their  goods, 
either  tiu'ough  the  mails  or  otherwise.     Ibid. 

RECORD  OF  AN  APPEAL— ITS  CONCLUSIVE  CHARACTER. 
A'ide  Appkal  Pond,  2. 

RECORD  OF  PROBATE  IN  ANOTHER  STATE. 
Vide  Probate  of  a  will. 

RECORDARI. 

Where  the  president  of  a  rail-road  company  was  informed  that  a  suit  was 
about  to  be  brought  against  his  company,  before  a  justice  of  the  peace, 
and  believing  that  a  recovery  in  such  suit  would  be  unjust,  gave  instruc- 
tion to  the  most  convenient  station-agent,  to  attend  the  trial,  and  in  case 
of  a  recovery  against  the  company,  to  appeal  to  couit,  and  such  agent 
was  a  diligent  and  faithful  officer,  but  from  ignorance  of  the  law,  failed 
to  procure  security  for  the  ap})eal,  it  was  held  that  there  was  no  such 
laches  on  the  part  of  the  president,  as  deprived  the  company  of  a  I'ight 
to  a,  recordari.     Rail  Road  Co.  v.   Vinson,  IPJ, 

REFERENCE  TO  CLERK. 
Vide  PnACTiCE,  2. 

REFUNDING  BOND. 

Vide  Statute  of  Limitations,  S. 

REGISTERED  COPY. 

1.  The  ICth  section  of  the  37th  chapter  of  the  Revised  Code,  makes  a  certi- 
fied copy  of  a  registered  deed  competent  evidence.  Hughes  v.  Dehnarn^ 
127. 


526  INDEX. 

2.  Slight  and  immaterial  mistakes  in  the  registration  of  a  deed  of  gilt  will 

not  avoid  it.     Ihid. 
Vide  Evidence,  2. 

RELEASE. 

Vide  Estoppel,  1. 

REMEDIAL  LEGISLATION  WHERE  COURT  HOUSES  HAVE  BEEN 
BURNT. 

Vide  Color  of  title. 

REMOVING  A  FENCE. 

Where  a  party  has  neither  possession,  nor  right  of  possession  to  land,  he 
cannot,  upon  an  indictment  for  nnlawfully  removing  a  fence  therefrom, 
raise  a  question  as  to  a  right  of  entry,  nor  is  it  any  defense  to  him  that 
he  did  the  act  to  bring  on  a  civil  suit,  in  order  to  try  the  title.  State  v. 
Oraham,  397. 

REMOVAL  OF  A  SUIT  TO  SUPREME  COURT  BY  CONSENT. 
Vide  Practice,  7. 

REMOVING  A  DEBTOR. 

1.  Where  a  party,  with  his  horse  and  biigg}'^,  carried  a  debtor  to  a  railroad 
station,  and  there  procured  the  money  to  enable  hiin  to  leave  the  State, 
with  the  intent  to  assist  him  in  the  purpose  of  avoiding  his  creditors,  it 
was  held  to  be  a  fraudulent  removal  within  the  statute.  Moffitt  v.  Bur- 
gess^ 342. 

2.  The  declaration  of  a  debtor  fraudulently  removed,  that  "  he  intended  to 
get  the  defendant  into  a  scrape,"  was  held  to  be  immaterial.     Ihid. 

REPAIRS  TO  A  VESSEL. 
Vide  Attachment,  1. 

RETURN  OF  PROCESS. 

Vide  False  Return,  1,  2,  3.  , 

ROAD. 

Whether  there  was  a  necessity  for  a  public  road,  between  given  termini,  is 
matter  which  cannot  be  re-examined  in  this  Court.  Pridgen  v.  Banner- 
man.  53. 

Vide  Overseer  of  Road. 

RULE  IN-SHELLY'S  CASE. 
Vide  Deed  of  gift. 

SALE  OF  LAND. 

1.  Where  an  administrator  petitioned  for  the  sale  of  his  intestate's  land,  set- 
ting forth  the  number  and  amount  of  the  debts  existing  against  the  es- 
tate, and  a  decree  passed  for  such  sale,  in  a  suit  by  an  administrator  de 
bonis  non,  to  recover  a  surplus  over  and  above  the  debts,  such  decree  was 
held  not  to  be  conclusive  as  to  such  debts,  although  the  persons,  to  whom 
the  land  was  devised,  were  made  parties.     Laiia  v.  Russ,  111. 

2.  A  sale  of  land,  by  a  decree  of  a  court  of  equity,  is,,  in  effect,  a  saJe  by 


INDEX.  52? 

the  owner  of  the  land,  through  the  agency  of  the  court.  Williams  v 
Council,  229. 
S.  Notice  is  not  required  to  be  given  to  the  creditors  of  a  deceased  person  on 
an  apphcation  by  the  administrator  or  executor  to  sell  the  real  estate  for 
the  payment  of  debts,  Revised  Code,  chap.  46,  section  45,  &c.  Tliomp- 
son  V.   Cox,  311. 

4.  Nor  is  the  fund  raised  by  such  sale  nnder  the  control  and  direction  of 
the  court  making  the  order  of  sale.     Ihid. 

5.  After  passing  the  order  for  the  coiifirnialion  of  a  sale,  made  by  virtue  of 
Uie  statute,  Kev.  Code,  chapter  4G,  section  4.5.  &c.,  the  jurisdiction  of  the 
court  is  at  an  end,  and  a  petition  lo  open  the  biddings  under  such  sale,  will 
not  be  sustained.     Ihid. 

SCHOOL  FUNDS. 

Vide  Chairman  of  Common  Schools. 

SCIRE  FACIAS. 
Vide  Dktinue. 

SEAL. 

A  square  piece  of  paper  affixed  with  a  wafer  to  an  instrument,  opposite  to 
the  name  of  the  donor,  in  the  place  where  the  seal  is  usually  placed,  will 
in  the  absence  of  proof  that  tiio  donor  intended  otherwise,  be  valid  as  a 
seal.     Hughes  v.  Dcbnam,  127. 

SECRET  TRUST. 

W  here  one  owned  and  possessed  slaves  for  15  years,  and  they  were  run 
out  of  the  State  secretly,  by  the  owner,  into  another  Stale,  and  then  ta- 
ken in  hand  by  the  defendant,  who  carried  them  into  a  distant  State  and 
sold  them,  and  received  the  money  about  the  time  the  plaintiO's  judg- 
ment was  obtained  against  the  owner,  it  was  held  that  tiiis  was  some  ev- 
idence of  a  secret  trust,  for  the  use  and  benefit  of  the  debtor,  to  enable 
him  to  defraud  his  creditors.     Morrison  v.  McNeill,  45. 

SEISIN  OF  ANCESTOR. 

Vide  Statute  of  Limitations,  7. 

STAY  LAW. 

The  provision  of  the  Act  of  Assembly,  passed  on  the  11th  day  of  May,  1861, 
commonly  called  the  "  Stay  Law,"  forbidding  jury  trials,  and  trials  be- 
fore justices  of  the  peace,  and  the  issuing  of  execntions,  and  sales  under 
executions  and  deeds  of  trust,  held  to  be  unconstitutional  and  void. — 
Barnes  v.  Barnes,  366. 

SET  OFF. 

Money  paiil  by  B,  the  surety  of  A,  is  a  good  set-off  against  a  note  payable 
to  A,  which  was  endorsed  after  it  fell  due.     Harrington  v.   Wilcox,  340. 

SHERIFF. 

Vide  Summary  Judgment. 

SHERIFF. 

Vide  False  Return,  1,  2,  3. 


528  INDEX. 

SHERIFFS  BOND, 

1.  The  ceremony  of  acknowledgement  in  open  court,  and  registration.,  are 
not  essential  to  the  validity  of  a  sheriff's  bond.  McLean  v.  Buchanan., 
444. 

2.  Where  a  debtor  lived  in  one  countj^,  and  had  places  of  business  in  two 
other  counties  adjoining,  and  it  appeared  that  a  sheriff  who  acted  as  a 
collecting  aflicer,  went  thi'ee  times  during  three  months  to  such  r'isidence, 
at  the  end  of  which  time  the  debtor  became  insolvent,  although  it  appear- 
ed that  the  debtor  was  most  usually  absent  from  home  during  this  time, 
it  was  held  that  the  officer  was  guilty  of  such  lashes  as  to  render  him 
and  his  sureties  liable  on  his  official  bond.     Ibid. 

SLANDER. 

1.  The  words,  "  You  as  good  as  stole  the  canoe  of  J.  H  ,"  are  not  actionable, 
pet  se.     Stokes  v.  A7-ey,  6G. 

2.  It  is  not  actionable,  per  se,  to  charge  a  white  man  with  being  a  free  ne- 
gro ;  and  it  does  not  alter  the  case,  that  such  white  man  was  a  minister 
of  the  gospel.     McDowell  v.  Bowles,  184. 

3.  In  a  declaration  lor  slander,  in  charging  the  plaintiff  with  pcijury  in  an- 
other State,  it  must  be  averred  that,  by  the  laws  of  such  other  State,  per- 
jury is  an  offense  to  which  is  annexed  an  infamous  punishme'nt.  Spar- 
row V.  Maynard,  195. 

4.  Words  charging  one  with  an  attempt  to  commit  a  felony,  however  odi- 
ous, are  not  actionable  per  se.      ]Vilsoii  v.  'futmn.,  300. 

5.  Reports  that  the  plaintiff  swore  to  a  lie  or  lies  in  a  distant  county,  can- 
not properly  be  submitted  to  a  jury  in  an  action  of  slander  as  elements, 
from  which  a  jui-y  are  to  make  up  an  estimate  of  their  own  of  the  cha- 
racter of  the  plaintiff.     Luther  v.  Sheen,  356. 

SLAVES. 

Vide  CoNTR.\CT,  9  ;  Deeb  of  Gift  ;  Jail  fees. 

SOLDIER  UNDER  ARREST. 
Vide  IIabe.vs  Corpus. 

STATUTE  OF  FRAUDS. 

L  Where  the  land  of  one  of  two  sureties  of  a  third  person  was  sold  under 
execution  for  the  debt,  and  the  other  surety  bid  it  off,  it  was  held  that  an 
agreement  for  the  owner  of  the  land  to  pay  the  debt,  and  take  an  assign- 
ment of  the  bid  to  hiin,  was  not  affected  b}^  the  statute  of  frauds.  Hock- 
aday  v  Parker,  IG. 
2.  Where  a  remaniderm  slaves,  during  the  particular  interest,  was  offerred 
for  sale  at  auction,  when  certain  written  terms  were  proclaimed  by  the 
crier,  and  the  delendant  was  the  last  and  highest  bidder,  but  the  propei- 
ty  was  not  delivered  to  him,  in  a  suit  for  not  complying  with  the  terms 
of  sale,  it  was  held  that  the  contract  was  within  the  statute  of  frauds,  so 
far  as  the  bidder  was  concerned,  and  no  action  would  lie  against  him.- — 
Edwards  v.  Kelly,  69. 
Vide  Contract,  8. 

STATUTE  OF  LIMITATIONS. 

1.  Where  a  bailment  is  once  established,  a  mere  possession  under  a  claim 
of  title  with  the  use  of  property  as  his  own,  unaccompanied  by  an  act 
upon  the  part  of  the  bailee,  changing  the  nature  of  his  holding,  will  not 
set  the  statute  of  limitations  in  motion.     Koonce  v.  Perry,  58. 


INDEX.  529 

2.  Wliere  a  writ  in  slander  was  issued,  returnable  to  a  term  of  the  Court, 
and  no  alias  issued  from  such  return  term,  but  a  writ  is;<ued  fiom  the 
next  term  thereafter,  it  was  held  that  the  latter  writ  was  the  commence- 
ment of  the  snit,  and  the  limitation  to  the  action  must  be  determined  ac- 
cordingly.    Ilanna  v  Ligram,  55. 

3.  "Where  the  land  of  an  inlimt  was  sold  by  a  decree  of  a  court  of  equity 
and  the  purchaser  went  into  possession,  but  no  deed  was  made  by  the 
master  during  his  continuance  in  ofiice,  it  was  Jield,  that  durintj  this  time 
the  purchaser  was  in  as  the  tenant  of  the  former  owner,  and  that  his  ta- 
king: a  deed  from  the  master  after  his  going  out  of  office,  did  not  change  that 
relation.      WUUcans  v.    Council,  22f).  '^ 

4.  JJehl  further,  that  the  purchaser's  making  a  deed  of  trust  to  secure  debts, 
but  still  remaining  in  possession,  did  not  change  the  relation,  and  make 
the  holding  adverse,     Jhid. 

5.  Jlehl  further,  than  an  agreement  on  the  part  of  such  purchaser  to  sell  the 
land  thus  bid  olT  by  him,  absolutely,  and  an  entry  and  possession  of  the 
party  contracting  to  buy,  he  acknowledging  himself  the  tenant  of  the 
person  who  bid  ofl'  the  land,  did  not  niake  the  holding  adverse  to  the 
original  owner.     Ibid. 

G.  Where  the  ancestor  of  a  married  woman  died  seized  and  possessed  of  a 
tract  of  land,  it  was  held  that  the  descent  cast,  and  the  title  derived  from 
her  ancestor,  according  to  the  law  of  tliis  State,  gave  her  an  actual  seizin, 
and  haVing  had  children  during  her  coverture,  her  husband  became  ten- 
ant by  the  curtesy  initiuie,  and  was  subject  to  the  bar  of  the  statute  of 
limitations.  A  fortiori  is  such  the  case  where  one  of  the  wife's  co-heirs 
made  nn  actual  entry  ;  for  his  possession  was  that  of  all  the  heirs.  Child- 
ers  v.  JJiimgarner,  297. 

7.  The  children  of  one  entitled  to  an  estate  as  tenant  by  the  curtesy,  are 
allowed  seven  years  from  the  death  of  their  father  before  their  they  are 
barred  by  the  statute  of  limitations.     Ibid. 

S.  The  statute  of  1781),  barring  claims  not  sued  for  in  two  years,  does  not 
protect  an  administrator  unless  he  has  paid  over  the  assets  to  the  distri- 
butees, and  taken  refunding  bonds  as  well  as  advertised  in  conformity 
with  the  act.      Cooper  v.  Cherry,  323. 

Vide  Demand,  1. 

STATUTE  OF  USES. 

Vide  Limitations  in  Remainder,  3l 

SUBSCRIBING  WITNESS. 

It  is  sufficient  if  a  subscribing  witness^  at  the  execution  of  the  instrument, 
had  mind  enough  to  understand  the  obligation  of  an  oath,  and  to  prove- 
the  capacity  of  the  donor  and  his  execution  of  the  deed.  Hughes  v.  Deb- 
nam,  127. 

2.  Where  there  is  doubt,  whether  or  not  a  subscribing  witness  to  an  in- 
strument signed  it  before  the  donor,  it  was  held  that  in  the  absence  of 
proof  to  the  contrary,  the  presumption  is,  that  the  donor  signed  it  first. 
Ibid. 

TAXING  POWER. 

A'ide  Town  Commissioners. 

TENANCY. 

Vide  Evidence,  16.  * 


530  INDEX. 

TITLE. 

Vide  Trespass  q.  c  f.  2. 

TITLE  COMMON  TO  BOTH  PLAINTIFF  AND  DFENDANT. 

Vide  Ejectment,  2. 

TITLE  IN  A  THIRD  PERSON. 
Vide  Ejectment,  2  ;  Trover,  2. 

TIMBER  FOR  REPAIRING  ROAD. 
Vide  Overseer  of  Road. 

TIME  WHEN  AN  ACT  TAKES  EFFECT. 
Vide  Practice,  1L 

TOWN  COMMISSIONERS. 

The  Legislature  may  delegate  a  portion  of  the  general  taxing  power  to  in- 
corporated towns  for  corporation  purposes,  and  it  was  held  that  the  stat*- 
ute,  Rev.  Code,  chap.  Ill,  sec.  13,  empowering  the  commissioners  of  in- 
corporated towns  to  levy  a  tax  of  twenty-five  dollars  upon  retailers  of 
spiritous  liquors  by  the  quart  measui-e  or  under^  was  a  proper  exercise  of 
tlieir  power.      Commissioners  v.  Paiterson.  182. 

TREATIES  WITH  INDIANS. 

1,  Where  an  Indian,  under  the  treaties  of  1817  and  1819,  after  having  his 
reservation  allotted  to  him,  voluntarily  abandoned  it  and  re-united  him- 
seU  with  his  tribe,  west  of  the  Mississippi,  it  was  held  that  his  children, 
after  his  death,  were  not  entitled  to  any  estate  in  such  reservation  — 
Welch  v.  Trotter,  197. 

2.  A  treaty  in  its  effect  is  an  executorj^  agreement,  and  where  an  estate 
was  limited  by  treaty,  to  one  for  life,  with  a  remainder  to  others,  on  a 
condition  extending  to  both  estates,  it  was  held  that  on  breach  of  such 
condition,  both  estates  were  defeated  withoid  entry.     Ibid. 

TREATMENT  OF  HIRED  SLAVES. 
Vide  CoxTRACT,  9  ;  Negligence,  3. 

TRESPASS  Q.  C.  F. 

1.  Where  a  defendant  in  an  action  of  ejectment  has  been  evicted  under  a 
judgment  and  writ  of  possession,  he  is  not  estopped,  on  making  an  actu- 
al entry  on  the  premises,  fi'om  maintaining  an  action  of  trespass  Q.  C.  F., 
and  on  showing  title,  he  may  recover  for  trespasses  committed  after  the 
termination  of  the  former  suit.      White  v   Cooper,  AS. 

2.  Where  one  having  title,  enters  upon  one  who  has  evicted  him  by  a  judg- 
ment in  ejectment  and  writ  of  possession,  the  former,  by  the  jus  j)Ost- 
liminii,  notwithstanding  the  presence  of  the  other,  will  be  considered  to 
have  been  in  possession  all  the  time  from  and  after  the  date  of  the  evic^ 
tion.     Ibid. 

TRIAL  OF  A  NON-COMPOS. 

Where,  upon  the  arraignment  of  one  for  murder,  it  was  suggested  that  the 
accused  was  a  deaf  mute  and  was  incapable  of  understanding  the  nature 
of  a  trial  and  its  incidents  and  his  rights  under  it,  it  was  held  proper  for 
a.  jury  to   be  empanaelled   to  try  the  truth  of  these    suggestions,  and 


INDEX.  531 

such  jury's   responding   in  the  affirmative  of  these  suggestions,  for  the 
Court  to  decline  putting  the  prisoner  ou  his  trial.     /State  v.  Harris,  13G. 

TRIAL— CONDUCTING  OF. 
Vide  Evidence,  20. 

TROVER. 

1.  Where  a  constable,  by  levy  and  actual  seizure  of  a  slave,  had  acquired  a 
right  to  the  property  for  the  satisfaction  of  e.xecutions  in  liis  hands,  and 
delivered  such  slave  to  the  jailor  of  the  county  for  safe-keeping,  a  refusal 
of  the  jailor  to  re-deliver  the  said  slave,  by  command  of  his  superior,  the 
sheriflj  was  held,  in  an  action  of  trover  by  the  constable,  ac/cthist  the  sher- 
iff, to  be  evidence  of  conversion.     McDanicl  v.  Kethercxd,  1)7. 

2.  Where  the  plaintiff  delivered  a  quantity  of  wheat  to  the  defendant,  with 
an  injunction  to  keep  it  until  called  for,  to  which  he  assented,  it  was  held 
in  an  action  of  ti-over,  brought  to  recover  its  value,  that  it  was  a  valid 
defense  for  the  defendant  to  show  that  the  title  to  the  wheat  was  in  a 
third  person,  to  whom  he  had  delivered  it  before  the  plaintiff's  demand 
and  suit,     lliompson  v.  Andrews,  125. 

VERDICT. 

1.  Where  there  were  two  counts  in  an  action  of  ejectment  on  the  demises 
of  several  heirs-at  heir,  and  a  general  verdict  was  rendered,  (jiving  nom- 
inal damages,  but  on  a  point  of  law  reserved  it  was  determined  that  the 
lessor  in  one  of  the  counts  was  barred  by  the  statute  of  hmitalions,  it 
was  held  that  the  other  lessor,  was,  nevertheless,  entitled  to  his  judgment. 
Childers  iw  Bumgarner,  297. 

2.  In  an  action  of  debt  for  a  penalty,  in  which  nil  debit  is  pleaded,  a  ver- 
dict finding  all  issues  in  favor  of  the  plaintifl"  and  assessing  his  damages 
to  $500,  will  not  sustain  a  judgment  of  recovery.  Albright  v.  Tapscott, 
473. 

VERDICT— SPECIAL. 
Vide  Larceny. 

VICIOUS  ANIMALS. 

Where  a  sow,  having  a  bad  reputation  for  devouring  young  poultry,  (which 
was  known  to  her  owner)  was  seen  with  a  duck  in  her  mouth,  and  on 
being  chased  dropped  it,  but  mimediately  again  ran  after  it.  and  was  shot 
by  the  owner  of  the  duck  while  in  such  pursuit,  it  was  held  that  he  was 
justified  in  so  doing.     Morse  v  Nixon,  35. 

VOLUNTARY  ASSIGNMENT. 

Vide  FuAUD. 

WAIVER. 

Appeal  Bond,  1 ;  Certiorari,  1. 

WAIVER  OF  OBJECTION  ON  A  TRIAL  BEFORE  A  MAGISTRATE. 

1.  A  (IcIiMidant,  by  going  to  trial  before  a  justice  of  the  peace,  ou  the  merits 
of  his  L-ase,  without  making  objection  to  the  want  of  service  by  a  proper 
oflficer,  is  not  at  liberty  to  take  the  objection  in  an  appellate  court.  Tay- 
lor \.  Marcus,  402. 

2.  Wheie  there  was  a  trial  before  a  justice  of  the  peace,  and  an  appeal,  and 


532  '  INDEX. 

no  objection  appears  on  the  face  of  the  proceeding  to  the  service  of  the 
warrant,  it  will  be  assumed  in  the  appellate  court,  that  the  objection  wa?( 
waived  balow.     Ibid. 

WARE-nOUSE-AIEN. 

Vide  Railroads  as  common  cakriers,  1. 

WIDOW— HER  DISSENT  FROM  WILL. 

Wjicre  a  widow  qualified  as  executor  of  her  husband's  will,  it  was  held 
that  she  could  not  afterwai'ds  dissent  from  the  will  and  claim  dower. — 
Mendenhall  v.  Uendenladl,  287. 

WILL. 

Vide  Probate  ok  a  -wim.. 

WRIT  OF  ERROR. 
Vide  Pkactice.  4. 

WRIT  OF  ERROR  CORAM  NOBIS. 

1.  A  writ  of  erroi-  cora^in  nobis,  lies  from  any  cour*;  of  record  rctui-nable  to 
itself,  and  not  from  a  superior  to  an  inferior  court,  llouyldon  v.  Brown, 
393. 

2.  Only  the  parties  to  a  judgment,  as  to  whom  there  is  error  of  fact,  need 
join  in  a  writ  of  error  coram  nobis.     Ibid. 

3.  The  husband  of  a  feme  covert  against  whom  a  judgment  has  been  taken, 
must  join  with  her  in  au  application  for  a  writ  of  error  coram  nobis.    Ibid. 

WITNESS. 

The  maxim  of  law  ^'■falsurn  in  una,  falsum,  in  omnibus'  does  not  prevail  in 
courts  of  law,  the  fact  of  the  witness'  having  sworn  Hilsely  as  to  one  mat- 
ter, going  to  the  credibility  and  not  to  the  competency  of  his  testimony 
as  to  other  matters.     Slate  v.  Smilh,  132. 

Vide  Evidence,  8 

WRIT. 

Vide  Amendment,  4. 

WRITTEN  CONTRACT. 
Vide  Evidence,  12. 


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